Flexible working: new rules explained

AMANDA PATERSON says the latest changes on working regulations could affect your business

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It’s the biggest raft of changes to flexible working regulations and family friendly rights for 10 years. From day one rights to a requirement for consultation following a worker’s request, the revisions, which came into force in April, may seem daunting for an employer fearing a deluge of applications.

However, with so many people having settled into quasi-flexible working arrangements post-pandemic, employers already grappling with flexible working requests at the recruitment stage, and the fact that eight broad reasons for refusal still remain, these fears may be unfounded.

Let’s look at the changes and what they might mean for your business

Employment Relations (Flexible Working) Act 2023 and Flexible Working (Amendment) Regulations 2023 (SI 2023/1328):

1. The right to request flexible working now applies from day one in a role, removing the requirement for an employee to have had 26 weeks’ continuous employment.
2. Removal of the requirement to explain the effect and impact of change in application.
3. Two requests allowed in any 12-month period rather than one.
4. An employer must consult with an employee if they do not intend to grant their request in full.
5. Two months for the employer to confirm outcome (formerly three months), unless a further period is agreed between the two parties.

There is also a raft of new and amended rights related to family leave, as follows:

Carer’s Leave – a new entitlement in the Carer’s Act 2023:

1. Day one right
2. One-week unpaid leave in each 12-month period for a worker with a dependent requiring long-term care.
3. Taken in individual days or half days, up to a block of one week. The notice requirement for the request is either twice as many days as requested or three days, whichever is greater.
4. An employer can exercise their discretion to waive the requirement for notice.
5. No right to decline a request altogether, however, an employer may postpone leave where they consider the business would be unduly disrupted. They must allow the leave within one calendar month of the requested date.

The Paternity Leave (Amendment) Regulations Act 2024:

• Allows fathers and partners to take leave and pay as two consecutive blocks of one week rather than one block of one or two weeks.
• Can take leave at any point in the first year after the birth or adoption of the child rather than only in the first eight weeks.
• Notice period for leave shortened to 28 days instead of by 15 weeks before the expected week of childbirth.

Protection from Redundancy (Pregnancy and Family Leave) Act 2023 – previously employees who were at risk of redundancy and were on maternity, adoption or shared parental leave had to be offered suitable alternative employment before other at-risk employees if such positions were available. However, this protection now begins from when an employee notifies the employer of their pregnancy or a child has been placed with them for adoption and extended for 18 months from the date of birth or placement of the child.

The Neonatal Care (Leave and Pay) Act 2023 will come into force in April 2025. An employee whose baby requires neonatal care following birth will be entitled to leave, capped at 12 weeks and entitled to statutory neonatal care pay if they meet the criteria.

What steps should you, as an employer take?

• Review your policies to ensure they align with the new regulations
• Train your management in how to deal with these requests and conversations
• Embrace the changes and the benefits that come from a more flexible workforce
• Balance these against the needs of the organisation and the impact on the wider team

Aberdein Considine’s ‘Access HR’ platform provides clients with specialist advice from a legal and HR perspective. From a full package of HR support to preferential access to seminars and strategic legal support, the expert help is there. For more information, visit legal.acandco.com or get in touch with us at ask@acandco.com.

Amanda Paterson is a solicitor in Aberdein Considine’s employment law team. She advises employers and employees on a range of employment-related matters including settlement agreements, contract reviews, disciplinary and grievance advice, sickness absence and capability