Educational institutions should be aware that the Employment Relations (Flexible Working) Act gained Royal Assent on 20 July 2023, and it is expected to come into force in 2024. As such, the changes are not yet law and the old (current) regime still applies.
Current Law
Employees with a minimum of 26 weeks’ continuous service can make a statutory request for changes to their employment contracts to allow flexible working. Typical flexible working requests can include and is not limited to changing the place of work (to work from home instead of the office) or working time (to increase or decrease days, hours or times of work).
A Statutory Flexible Working Request (‘FWR’) must:
- Be in writing.
- Be dated.
- State that it is a statutory request.
- Specify the change the employee is seeking and when they want this to take effect.
- Explain the impact the change would have on the School/Trust and how it can be dealt with.
- State whether a previous application has been made and when.
An employer can refuse a Statutory FWR under the following eight reasons, which are prescribed in law:
- The burden of additional costs.
- An inability to reorganise work amongst existing staff.
- An inability to recruit additional staff.
- A detrimental impact on quality.
- A detrimental impact on performance.
- Detrimental effect on ability to meet customer demand.
- Insufficient work for the periods the employee proposes to work.
- Planned structural changes to the business.
Employees under the current law can only make one statutory request in a 12 month period and the School/Trust are required to respond to an employee’s FWR within three months, unless an extension to this time limit is agreed.
Please note that the above relates to a legal right to make an FWR. You should consider your flexible working policy to see whether it provides for a right to make an informal request, outside the prescribed statutory regime set out above.
You should also note that even where the employee does not qualify to make a statutory FWR, they may still make one informally and in some circumstances, it may be necessary to deal with it particularly if the reason for the request is childcare or a disability, which could expose the School/Trust to claims of discrimination if not handled properly.
Statutory FWRs under the current regime should be handled under the Acas Code of Practice on handling in a reasonable manner requests to work flexibly. This code is statutory meaning that if requests are not handled in accordance with it, an employment tribunal may find that the FWR was not handled fairly and in accordance with the law.
The Key Incoming Changes
The main changes the Act proposes to bring when it becomes law in 2024 are as follows:
- Employees will now be able to make two statutory requests within the 12 month period. However, they will not be able to make a second request whilst the first one is outstanding.
- Employees are no longer required to explain in a written request the impact of their request on the School/Trust. This is to ensure requesting FWR’s are made easier and accessible to all employees.
- The School/Trust is now required to make a decision in relation to the FWR within two months instead of three.
- The School/Trust must consult with employees prior to rejecting their FWR with a view of finding alternatives if the School/Trust is unable to fulfil the employee’s FWR.
There will be no changes to the eight prescribed reasons the School/Trust can rely on when refusing an FWR. The current 2014 Acas Code of Practice on handling flexible working requests and the new draft code recommends it is good practice for employers to consider any appeal that is lodged but the Act does not oblige them to do so.
Although the Act is not in force yet, the School/Trust should review their existing Flexible Working Policies and processes to ensure they meet these new standards by 2024. There is no obligation to implement any changes yet, however.
Acas Code of Practice
Acas closed its consultation on the draft code in September 2023 and is currently reviewing the responses. Acas has said it will publish an updated version of the statutory Code of Practice in 2024 when new flexible working legislation comes into force. While no date has been set, the new legislation is expected to come into force approximately one year after the Employment Relations (Flexible Working) Act 2023 gained Royal Assent. This would be in around July 2024. Given the summer recess, the Act may come into force sooner.
The updated Code aims to provide a clear explanation of the law on the statutory right to request flexible working, alongside good practice advice on handling requests in a reasonable manner. FWRs brought under the new regime will be handled under the updated Code of Practice. Schools/Trusts must therefore ensure that their policies and processes reflect the updated code, as if requests are not handled in accordance with it, an employment tribunal may find that the FWR was not handled fairly and in accordance with the law.
Among other things, the updated code seeks to:
- extend the categories of individuals who may accompany an employee at meetings to discuss a request.
- provide guidance that employers should set out additional information as is reasonable to help explain their decision.
- provide guidance that employers should allow an appeal where a request has been rejected.
Acas will also be updating its non-statutory guidance which sits alongside the code.
Further Information
For further information on Employment Relations (Flexible Working) Act 2023, please contact a member of the Schools HR team on 0345-026-8690 or schoolshr@wslaw.co.uk.