As a remote working expert I believe the Employment Relations (Flexible Working) Act isn't enough for real change

News that the UK’s Employment Relations (Flexible Working) Act received Royal Assent in July spread like wildfire across LinkedIn and the media and sparked some debate. Does it herald an era of greater freedom for employees, or will the status quo prevail? 

Certainly, the UK Government was keen to promote the news, declaring in a press release that millions of employees across the country will now have much greater flexibility over where, when and how they work.  

The mainstreaming of remote work, accelerated by the pandemic, has given employees the glimpse of greater choice over where they live without needing to compromise their career, and offered a better work-life balance by reducing the time and money spent on commuting or by gaining the option to work around other commitments, such as childcare. 
 
But it isn’t just employees who are benefitting from this trend. Employers that adopt distributed workforce models can vastly expand their available talent pool beyond their immediate geographic proximity, even beyond their national borders. This means companies can find talented individuals wherever they are in the world, which improves team diversity and offers the opportunity to create new competitive advantages, as well as enabling round the clock coverage to boost overall business output and serve customers round the world.

Our own research illustrates the benefits of embracing flexible work patterns, especially for retention. The 2023 Remote Workforce Report surveyed 1,004 HR and business decision makers and employees (including contractors) across four regions – North America, Europe, Asia-Pacific and Latin America. 

Some of the key findings include:

• The vast majority (69%) of employers with a distributed remote workforce say retention has increased since their business adopted the practice, while more than half (57%) said that a distributed remote workforce made it easier to hire and keep talent
   
• Only 17% of remote employees admitted they had considered leaving their job, compared to almost a quarter (24%) of their in-office counterparts. Reducing employee turnover and increasing retention is a crucial cost-saving exercise for employers, because finding, hiring and training new recruits can cost the equivalent of up to nine months of a worker’s salary
   
• Embracing flexibility can lead to increased productivity. Our report found that 72% of employers with an international remote workforce said that productivity has increased since adopting a distributed model. These employers stated that these international teams got more work done efficiently. 

I’ve seen this internally at Remote, where we’ve implemented rules around how to document work clearly and how to communicate well asynchronously, which leads to multiple hours a day saved without unnecessary meetings.  You can read more about this in our public handbook.  This style of working, involving clearer communication,  would also particularly benefit teams with job-sharers, a common feature of companies that embrace flexible working.  

As such, anything that encourages more firms to adopt flexible working models is to be welcomed and the Flexible Working Act is clearly a step in the right direction. It is helping to get an important topic on the mainstream agenda and at the forefront of minds.   

What is the the Employment Relations (Flexible Working) Act 2023

So what exactly is included in this new legislation? The act will make a number of changes to the statutory right for employees to request flexible working. The new changes will:

• Give an employee permission to make two statutory requests in any 12-month period (as opposed to one request under the current law)
   
• Reduce the time an employer can take to make a decision from three months to two months
   
• Remove the existing requirement that an employee must explain the effect, if any, the change applied for would have on the employer and how that effect might be dealt with 

The Government has also stated that the right will become a day one right. This is not detailed in the Act but thought to be set out in secondary legislation to come into force at the same time as the changes in the Act.

Why the Act doesn’t go far enough

The reality is that the legislative changes introduced in the Act do not go far enough. First, even though the Act has achieved Royal Assent, the measures and the secondary legislation are not expected to come into force until mid 2024.

And while the new legislation requires the employer to consult with the employee before rejecting any flexible working request, the employer still ultimately retains the right to reject a request.

Furthermore, there is still minimal recourse for an employee if the request is rejected. This is why workers, campaigners and media pundits should perhaps not get too excited about this new law. 
 
Consequently, the Act in and of itself will not be sufficient to create a step change in the flexible working revolution. Employers who are not open (or are openly hostile) to the concept of flexible work patterns are unlikely to have their opinion changed simply because of the changes.

For comparison, other countries have much more advanced laws governing an employee’s right to flexible work. In some EU countries such as the Netherlands, it is much more difficult to refuse a flexible work request and in Finland, for instance, the laws go much further than this: employees generally have the right to start or finish their work three hours earlier or later than their core working hours, and most employees also have the right to choose where and when they work for at least 50% of their working hours.  

The good news is that while the legislation continues to advance, change can begin at home (or I should say, at work). If more companies adopt flexible working styles, bake these into formal policies and then show that they work, it will encourage others to do so, in part to retain their top talent. Thus, it would make flexible work the norm rather than the exception and provide greater flexibility for employees without putting the responsibility on individuals to go down the formal request route.  

We have all heard the reasons why remote work doesn't work: culture, inability to collaborate, bad work-life balance and even compliance challenges involved with employing people in other geographies. 

However, none of these points are actually dealbreakers. My company, and many others, have found solutions to every one of these challenges, whether it be adopting async work or using a global HR platform to manage international employment.  

The passage of the Flexible Working Act underlines just how much today’s workforce craves greater flexibility. While this Act lacks the ‘teeth’ that are needed, it should encourage employers to take flexible work requests more seriously or even proactively offer greater flexibility to employees. 

Distributed work should not be viewed as an employee perk. It’s a business shift that can deliver operational and cost efficiencies to employers, as well as boost the wellbeing and productivity of staff. Companies that fail to offer flexibility risk losing workers to competitors and may even struggle to attract new talent. With or without the Act, remote work is becoming the norm, and those who fail to offer flexibility will fall behind.

Sam Ross, pictured below, is VP general counsel at Remote