A change is coming…

Changes are coming to the right to request flexible working and the procedures that should be followed, in the form of The Employment Relations (Flexible Working) Act 2023. These changes will affect Section 80 of the Employment Rights Act 1996, which outlines the current right to request a change to the terms and conditions of employment.

Flexible working requests are requests to change something within an employee’s working pattern on a fixed, permanent basis.

For many sectors, the pandemic required changes to working environments – during and after – with working from home or hybrid working becoming essential. Within childcare provision, however, working from home was not an option. When the lockdown restrictions were lifted, many organisations continued with some element of hybrid or fulltime working from home. Though more people seem to be gradually returning to their workplace post-COVID, the number of requests for home working have increased dramatically – leading to flexible working procedures receiving more attention.

In early education settings, though, requests made by employees have expressed a reduction to reduce working days or hours rather than working from home (for obvious reasons, hopefully!).

The current rules for the right to request flexible working allow for employees with a minimum of 26 weeks service to make one flexible working request) in any 12 months. Any such request must:

• be in writing
• be dated
• outline the change requested
• outline when they would like this to begin
• explain the effect this is likely to have on the business
• explain how any such effect could be addressed
• state that it is a statutory flexible working request
• outline whether any other application has been made within the previous 12 months.

• allow for up to two requests to amend contracts within any 12 months
• limit decision time to reduce process time from three months to two months
• remove the obligation for an employee to explain the effect any request is likely to have on the business alongside suggestions to address this
• provide for a statutory requirement to consult the employee before any such request is refused.

The removal of the employee’s requirement to consider any potential impact is likely to influence the nature of requests, and it’s possible this will mean they’re less likely to think about what’s workable for the setting. Nevertheless, during the statutory requirement to consult with the employee prior to refusing their request will be the time to hold conversations about the impact of the request on the setting if agreed. It’s important to remember, though – especially where it seems that the procedures are being changed in the employee’s favour – that this is still a procedure to request a change to a working pattern and that it can therefore be refused.

In the lead up to the Act receiving approval, it was noted that the qualifying period before making a request would become a day-one right for employees. Although this specific point does not appear in the Act, the government has announced that it still intends for this to be the case.

The Act requires secondary legislation be passed by the Secretary of State to bring the new rules into force. It’s likely that the regulations will also include the additional day one right to request. However, with nothing currently in place, it’s unlikely that this will be in place within the next few months.

The government has so far indicated that changes will most likely be in place in mid-to-late 2024 to allow organisations sufficient time to familiarise themselves with the new rules.

For now, familiarise yourself with the current policies and procedures, and consider how they may need amending in line with the new rules. Until any regulations are announced though, it is not possible to know the full extent of the additional changes that may be made (such as the inclusion of the day one right, or an extension of the right to be accompanied to meetings) and include them in any new policy or procedure.

Until the full regulations are published and the ACAS code of practice updated, it’s a case of ‘watch this space’. In the meantime, continue with any requests in line with your current procedure. For advice on any queries regarding requests received, you can call the Law-Call team – their details can be found at bit.ly/u5law-call.