Next year there are some legislative changes coming into effect which will impact all employers. Employers not only need to be aware of the changes ahead but also be proactively reviewing and updating their practices and policies now to align with the new legislation and protect their organisation. Pam Loch of Loch Associates explains what’s happening…

One of the most significant changes to employee rights ahead is the Employment Relations (Flexible Working) Act 2023. This Act will change the current legislation on flexible working arrangements, introducing some key changes.

Under the new legislation, employees will have the right to request flexible working from the very first day they start work. Previously they had to have 26 weeks’ service before they could make a request. Employees will also no longer have to present, what is in effect, a business case to justify their request. Employers will have only two months, instead of three months to consider the request and reach a decision. They will also be required to meet and consult with an employee before refusing a request.

The Act will give employees the right to make two flexible working requests each year, as opposed to the existing one-a-year limit. This arguably recognises the fluid nature of employees’ lives and their need for adaptability in response to changing circumstances.

As a consequence of this change, and the anticipated publicity about it, employers should anticipate a potentially higher volume of flexible working requests throughout the year. In order to manage these requests efficiently, employers should have in place effective processes to review and respond to applications promptly, ensuring they have trained their managers on how to deal with them too.

As is currently the case, employees can make flexible working requests for any reason. The requests could relate to, for example, changing the location where they work, or the time and days they work. The employee may, for example, want to have an extended lunch hour to go home to feed and walk their dog.

It’s important to identify whether or not the request could be regarded as a reasonable adjustment because the employee has a disability in accordance with the Equality Act 2010. Alternatively, the request could be being made to accommodate
caring for dependants. While employers must give all requests serious consideration, they must be particularly mindful of unlawful discrimination when the requests have been made because of a disability or due to caring for dependants.

At the moment, there are eight reasons an employer can legally refuse a flexible working request and they remain available going forward. The reasons include: the cost is too significant for the business; the inability to re-organise workload among other staff members; the inability to recruit and replace staff for time lost; the negative impact on the quality of work from the individual as well as general performance levels; the negative impact on the business’ ability to meet demands; not having enough work for the individual if they are requesting to work more; and pre-planned changes to the business having an effect on the opportunity to change the working pattern of an employee.

It is also worth keeping in mind that employees may be aware of the success of the four-day working week trials conducted at over 60 UK companies between June and December 2022. More than 90% of participating businesses have chosen to continue with the four-day working week, with 18 opting for permanent implementation. These trials provide evidence employees may rely on to show the benefits of a more flexible approach to work, which include improved wellbeing, reduced stress levels, and increased productivity, as well as enhanced employee morale and better retention rates.

The Workers Protection Bill, currently going through Parliament, will impose a duty on organisations to take reasonable steps to prevent sexual harassment and make employers liable for third-party harassment. This change in approach would represent a significant departure from what has happened in the past, placing a proactive and significant onus on employers to protect their staff from harassment in the first instance.

Employers will have to carry out risk assessments to identify how individuals could be harassed in various situations and take proactive steps to prevent that happening. This shift underscores the importance of fostering safe and respectful work environments, holding employers accountable for protecting their employees not only from internal harassment but also from external sources.

The Worker Protection (Amendment of Equality 2010) Act 2023 changes the approach being taken to work-place safety. Having just received Royal Assent, this legislation will into come force in 2024, and impose a duty on organisations to take reasonable steps to prevent sexual harassment of their employees. This change represents a significant departure from existing protection, placing a greater responsibility on employers to proactively take steps to protect their staff. Employers will be required to assess how individuals could be harassed in various situations, and take measures to prevent such incidents. This shift underscores the importance of fostering safe and respectful work environments, holding employers accountable for protecting their employees.

However, employers should not wait for this legislation to come into effect. In order to protect their staff and their organisation, employers should take steps now to review their processes and policies and train their managers to avoid the costly consequences of harassment.