The Employment Relations (Flexible Working) Act 2023

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In our January 2023 update, we discussed the employment law changes likely to be implemented by the government this year, one of which is the implementation of the Employment Relations (Flexible Working) Bill (the Bill). The Bill finally received royal assent on 20 July 2023 which means that it will become law.

What are the changes?

  • Employees will be able to make two flexible working requests in any 12-month period (currently they are only able to make one request).
  • Employers must respond to flexible working requests within two months of receiving the request (currently employers are required to respond within three months).
  • Employees will not be required to explain in their applications what effect it will have on the business if their flexible working request is accepted and how to mitigate that effect.
  • Employers will be required to ‘consult’ with employees before refusing a request.

What is not changing?

  • The right is still to make a request for flexible working, not to be granted flexible working by default.
  • The right to request flexible working will not become a day-one right. Employees still need to have 26 weeks’ continuous service before they can make a request.
  • There are no changes to the eight business reasons an employer can rely on to reject a request.
  • The Act does not provide a right of appeal if the employer rejects the request. However, it is best practice to allow an appeal as the ACAS Code of Practice recommends that employees are offered an appeal.
  • There is no definition nor detail of the requirement to consult employees or even any minimum requirements which creates unwelcome uncertainty for employers. However, ACAS has helpfully introduced a draft Code on its updated Statutory Code of Practice on handling requests for flexible working which includes a section titled “Consulting the employee and exploring alternatives.”.

Practical implications for Employers

It is expected that the Bill will come into force by approximately July 2024 to allow employers to prepare for the changes.

It is imperative that employers understand the changes as research now shows that the ability to work flexibly has become a key priority for many employees in the post-pandemic workplace and the new changes facilitate this for employees. We always recommend that employers engage actively with employees on flexible working as it can assist with recruitment and retention which is a benefit for employers.

In light of the changes, we would recommend that businesses consider the following steps in advance:

  • Familiarise yourselves with the ACAS Code of Practice on flexible working. The consultation of this code is expected to end on 6 September 2023 so employers should keep a look out for this, however you can access the consultation note.
  • Review and update your existing policies on flexible working.
  • Implementing a consistent and reasonable approach given the lack of guidance from the government on consultation with employees.
  • Implementing clear processes on flexible working as you may find an increase in the number of flexible working requests given that employees will be able to make two requests each year.

If you have any questions about any of the changes discussed or if you need advice on how your business can adopt flexible working policies then please contact our Employment team for support.

(August 2023)