Flexible working: What does the law change mean for HR?

In early 2024, it might have seemed like all HR headlines were about the incoming Employment Relations (Flexible Working) Act 2023, which is better known as the flexible working law.

For many employees, the flexible working law, which has now been in place since 6 April, couldn’t come soon enough.

A LinkedIn poll shows that 77% of workers think flexible working is more important than money when considering a new role. Elsewhere, CIPD figures show 4 million people have changed jobs due to inflexibility. Data from the HR body also shows that flexibility has direct links to better competitiveness and revenues.

Legal Ease: Flexible working update for April 2024

However, some argue that the new law doesn’t actually change that much. Toby Hough, people director for the software firm HiBob, explains that the changes amount to a framework regarding how to go about offering flexibility. “Ten years ago, this legislation would have been revolutionary but the vast majority of employees already benefit from flexible work models,” he says.

As practitioners likely already know, this change only gives employees better recourse to requesting flexible work (and that a request goes through due process) rather than flexibility itself.

Employees can now ask for flexible work from their first day of employment. They can also make two requests for flexibility within a year. Employees no longer have to detail the business impact of their request, and employers are now required to consult with them on their decisions.

Yet, as Katie Mahoney, counsel at the legal firm Mishcon de Reya, explains, while employers don’t have to deliver flexibility, they must process requests within two months. As this is a new law, employers should be ready for a deluge of requests, she suggests.

“Employers should prepare for a likely increase in the number of requests, as employees are likely to have gained awareness of their flexible working rights from the publicity,” she says.

Louise Taft , a lawyer at Jurit LLP, added that while HR doesn’t have to guide employees towards understanding what type of flexible employment change they might want, it does have to figure out whether the employee’s request is being dealt with within the law. New Acas guidelines about flexibility should help with this.

“By following the guidance and implementing as many of the best practice examples, businesses should find themselves on the right side of the employment tribunal fence,” she adds.

If the mention of employment tribunals raises an eyebrow, Cecily Donoghue, employment expert at Shakespeare Martineau, reminds us that HR shouldn’t panic.

She says: “It’s not a complete overhaul of the established flexible working procedures but updating flexible working policy is the best place to start. Employers should also make sure that all relevant managers and HR professionals are educated about the change.”

Getting HR up to speed on the change is likely the sensible tack to take, adds Taft, especially considering the context. More than half of employees (55%) in smaller businesses planned to make a flexible work request when the new rules came in, a report by the productivity platform Slack revealed in April, and as Donoghue notes: “More and more businesses are returning their teams to the workplace, so we can expect to see a flurry of flexible working requests and subsequent cases before the employment tribunal.”

Building on Taft ’s insight, Donoghue adds that the law change can perhaps help HR re-analyse the benefits that flexibility might bring, rather than become another battleground where employer-employee tensions are played out.

“Many businesses have recognised the benefits of flexible working, including greater levels of employee retention as well as increased engagement and productivity,” says Donoghue.

Oliver Shaw, CEO of the software firm Orgvue, points out that with the law change bringing flexibility to the fore, it represents a good chance for HR to lead the business in remodelling work, looking at performance metrics, how output is perceived, and the role that data, rather than gut feel and tradition, plays in shaping work.

For him this means understanding that flexibility isn’t just about office vs remote but about job sharing, different work patterns and compacted hours.

“Work is no longer defined by jobs or locations,” says Shaw. “Flexible working needs to be just that: flexible.”

To make this effective, Taft suggests, there needs to be a focus on process, communication, and understanding what happens if you refuse flexibility. “When assessing a request you need to carefully review the effect of the change they have asked for and the potential benefits or impact of accepting or rejecting it,” she says.

Chris Goulding, managing director of the recruitment firm Wade McDonald, adds that such a review can be a good moment to improve the culture and business focus, by having a good flexibility policy to guide it.

“It can help to encourage the implementation of boundaries and healthy attitudes towards flexible work, thus improving performance overall,” he argues. “The law can work to spark fairer access to flexibility, and bring employees, HR and employers together.”

So, what might this look like in practice? At the insurance firm Zurich, all new roles were made open to part-time, flexible or job share options five years ago. Steve Collinson, Zurich’s CHRO says that the approach has boosted gender diversity across the business. Senior female part-time hires have doubled since introducing that flexibility.

Read more: If we aren't tracking flexible working… what's the point?

The success of flexibility has been down to manager-report relationships, Collinson adds, as well as honest communication and all parties being flexible and open to compromise. Additionally, leaders at Zurich understand the value of employees’ lives outside of work, Collinson explains.

Not that he’s expecting every firm to be as radical as the insurance giant. “It is fully ingrained in our business but some employers may take a little time to make it work for them,” he says.

At Dropbox, the tech firm’s team adopts a remote-first, asynchronous work model. Caroline Nangle, HR business partner at Dropbox explains that the business model has allowed for individual autonomy in how work gets done, so that people can focus on enabling productivity by setting clear goals, working on the culture and delivering the right tools and moments of connection.

“Forward-thinking businesses need to provide tailored frameworks and technologies that are truly designed to support any new environment,” she advises.

As well as helping to cement flexibility, the new law may also help employers prioritise the kind of forward-thinking Nangle describes. It could also act as a stimulus in getting employers to think about how flexibility can drive people and businesses toward success.

As Orgvue’s Shaw described, rather than making work a flexibility free for all, the flexible working law change could bring different stakeholders together, to more effectively work towards the business’ goals. “It’s up to business and HR leaders to come together, to understand how to get the most out of people, empowering them to deliver their best work,” says Shaw.


This article was published in the May/June 2024 edition of HR magazine.

Subscribe today to have our latest articles delivered to your desk.