Changes to the right to request flexible working are incoming, but how will contractors be affected?

It’s a bit of a mouthful but the contractor sector ought to know about The Employment Relations (Flexible Working) Act 2023 (“Flexible Working Act”), as it has now received Royal Assent -- meaning it will become law in the coming months.

There is a lot of new guidance available on what the act means for employees and how the new law affects them.

But, writes Claire Flavin, employment solicitor at Brabners, what impact does the act have on contractors, and how does it strengthen the right to request flexible working?   

The current statutory scheme for flexible working 

 As a brief summary, the current statutory scheme to request flexible working is as follows: 

• the right only applies to employees, not self-employed contractors, consultants or agency workers;  
• employees must have at least 26 weeks’ continuous service with their employer in order to have the statutory right to request a change to their working hours, times or location;  
• an employee may only make one request in any 12-month period; 
• the employer may only refuse the request on certain statutory grounds; and  
• the employer has a period of three months to consider the request, discuss it with the employee (where appropriate) and notify the employee of the outcome (including any appeal outcome).   

What is going to change when the new law on flexible working is implemented? 

The new measures set out in the Flexible Working Act include:

• employees will have a right to make two flexible working requests in any 12-month period (but an employee may not make a request if another application to the same employer is already proceeding); 
• employers will be required to respond to requests within two months; 
• employers will be required to consult with the employee and explore the available options, before rejecting a flexible working request; and 
• there is no longer a requirement for employees to set out how the effects of their flexible working request might impact their employer. 

All other elements of the statutory right to request flexible working will currently remain the same.  

A day-one right, and from July 2024? Potentially...

Contrary to popular belief, the new Flexible Working Act itself does not currently mention a ‘day one right to request flexible working.’

However, based on ongoing discussions within government, it is expected that this ‘day-one right’ may be introduced in the very near future (with the effect that the current 26-week qualifying period would be removed). 

There is not currently a set date for the Flexible Working Act to come into force.

However it is likely that it will come into force in or around July 2024 (around 12 months from the date of Royal Assent). This gives employers time to understand and prepare for the legislation. 

How will the new legislation affect the contracting sector? 

Importantly, neither the current regime nor the new Flexible Working Act actually create a right for employees to have flexible working arrangements.

The frameworks simply give employees the right to request flexible working, which of course their employer can refuse.  

Technically, umbrella company employees will (and already do) have the right to make a flexible working request to their employer (i.e. the umbrella company).

However, given the already flexible nature of the contracting sector, the changes to the legislation are unlikely to have any material impact on umbrella employees, because they already have more freedom to dictate their working patterns than a traditional employee does. 

The new legislation will not have any impact on self-employed contractors since it is only applicable to employees, nor will it impact PSCs (assuming no contractor employed by their own limited company is going to make a flexible working request to themself).

While all employers -- including those in the contracting sector -- should be aware of the rights afforded to employees under the new legislation and the (slightly) increased obligations on employers, the reality is that in practice, the Flexible Working Act is something of a damp squib for the already-flexible, contractor sector. 

Enshrining a stronger flexible work request is another move towards contractor-like working

But, does this new law represent a shift towards a more flexible ‘contractor-like’ model?   

Along with other changes in the UK labour market over the last few years, such as the significant increase in hybrid and remote-working arrangements, there does appear to be a general shift towards enshrining flexible working practices following the covid-19 pandemic.

Both the government and employers appear to be embracing flexibility for workers and see the value in employees having more of a say over their own working patterns. The Flexible Working Act by itself though is hardly making waves in that respect. Many employers already offer flexible working polices which are more generous that the current, or new, statutory regime.  

Preparing for the changes 

Although many employers already have in place arrangements which go beyond these minimum requirements, all employers should review and update their flexible working policies to ensure they are compliant in anticipation of the Flexible Working Act coming into force. 

As for contract workers themselves however, the new regime is unlikely to offer any tangible benefits, but it also shouldn’t disturb the already considerable flexibility that contractors have in the workplace.