The Employment Relations (Flexible Working) Act was granted Royal Assent on 20 July 2023. The Act introduces some changes to the current regime for making a flexible working request, which will come into force on a day to be appointed, most likely in 2024.
The Act provides for the following changes.
- Employees will be able to make two flexible working requests (rather than just one as at present) in any 12-month period. Only one request can be in progress at any time.
- Employers will be required to ‘consult’ with employees before rejecting any request, although the Act does not include any details of what this consultation process should involve.
- Employees will no longer be required, as at present, to identify the effects of the proposed change and suggest how the employer might deal with them.
- Employers will be required to respond to a request within two months rather than three months as currently applies, subject to an agreed extension.
The Act does not include a ‘day one’ right to request flexible working as was originally anticipated, meaning that an employee will still require a minimum of 26 weeks’ service to make a request. The Government has previously confirmed that it will introduce this as a ‘day one’ right via secondary legislation. At present, draft regulations have not yet materialised, and there is no confirmed timescale for them to be issued.
Note that the current statutory reasons for rejecting a flexible working request will remain unchanged, meaning that provided the statutory process is followed, employers will not be under any greater obligation to grant a request. There still remains a risk, however, that employees whose requests are turned down may seek to bring a discrimination claim on the basis that the employer’s decision is discriminatory (for example, due to the employee’s sex, age or disability).
Acas has published a draft Code of Practice on handling requests for flexible working, updated to include the changes introduced under the Act and to reflect current best practice. Consultation on the draft Code closes on 6 September 2023.
The draft Code is more detailed than the current version and includes information about how a formal consultation meeting to discuss the request should be conducted. The Code also states that employees should be allowed to appeal against an employer’s decision to reject their flexible working request. The Code of Practice is not legally binding but will be taken into account by courts and tribunals when considering a claim under the statutory flexible working procedure. Non-statutory guidance on flexible working will also be updated to reflect the changes introduced by the Act.
The Employment Relations (Flexible Working) Act 2023 has only tinkered around the edges of the existing flexible working regime; it is far from ‘making flexible working the default’, the title of the 2021 consultation, and is a much watered down version of the original proposals for reform. Employers will still need to review their existing flexible working policies to ensure they reflect the changes to the statutory process and make sure that managers are up to date on the new requirements for handling a flexible working request.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2023.