Flexible working in the technology sector – here to stay?

The technology sector is widely known for its relaxed working culture, leading the way with remote working and relaxed dress codes before most other industries. Furthermore, a survey conducted by the Digital Skills Audit in February 2023 found that 85% of employees in north west technology firms would be more likely to leave their current jobs if flexible working was no longer on offer. The survey also saw an unsurprising rise in hybrid working across the sector, with an increase from 44% of employees working within a hybrid model in 2022, to 78% of employees doing so in 2023.

With flexibility on the rise within the technology sector and the world of work, the UK Government is in the process of making changes to the statutory flexible working regime, in terms of which eligible employees can request to make changes to their working pattern, place of work and job remit, as set out in the Employment Relations (Flexible Working) Act 2023. The Act, which received Royal Assent in July, is expected to come into force in 2024.

The Act makes four key changes to the existing legislation:

  1. Employees will be able to make two flexible working requests in every 12 months. At present, employees are only entitled to make one request every 12 months.
  2. The requirement for employees to “explain what effect, if any, the employee thinks making the change applied for would have on his employer and how, in his opinion, any such effect might be dealt with” has been removed.
  3. Employers must consult with their employees before rejecting a flexible working request. There has been debate as to how much is required from employers to meet this consultation requirement and, at present, this remains unclear.
  4. Decisions on flexible working requests must be made within two months (rather than the current limit of 3 months) unless a longer period is agreed with the employee.

The introduction of this legislation initially grabbed headlines as it was reported that the legislation would remove the 26-week qualifying period for making flexible working requests. However, this is not included in the Act.

It is likely, following these changes, that more employees will become aware of the right to make flexible working requests and that the volume of these requests will increase. Employers will still be able to reject flexible working requests, provided the new consultation requirement is complied with, relying on one of the following business grounds:

  • extra costs that will damage the business
  • the work cannot be reorganised among other staff
  • people cannot be recruited to do the work
  • flexible working will affect quality and performance
  • the business will not be able to meet customer demand
  • there’s a lack of work to do during the proposed working times
  • the business is planning changes to the workforce

By way of example, a flexible working request can be rejected where work cannot be re-distributed amongst existing staff, or where this would have a detrimental impact on quality or performance.

Employers should prepare for these changes by considering if and how flexible working requests can be accommodated and how to consult with employees who make such requests.

In addition, employers should ensure that they have an updated flexible working policy rolled out to all staff, taking the above changes into account.

If you would like any further advice on this matter, please contact our team of specialist employment lawyers who would be pleased to assist.

This update contains general information only and does not constitute legal or other professional advice.

Pauline Hughes, Solicitor: pah@bto.co.uk / 0141 221 8012 / Connect with Pauline on LinkedIn