The Employment Relations (Flexible Working) Act 2023, a Private Member’s Bill changing the operation of the statutory right to request flexible working received Royal Assent on 20th July 2023. The Bill provides for the Employment Rights Act 1996 to be amended to make changes to employees’ statutory Right to Request Flexible Working. The government has indicated that it will allow approximately one year for these changes to become law, to give employers the opportunity to update their Flexible Working policies and procedures. We therefore expect the see these changes to be implemented around July 2024.
The key changes will be:
- Employees will be able to make two flexible working requests in any 12 month period, rather than the current one request in this period. Countback will include any requests made prior to the legislation coming into force.
- Employers will have to make a decision and respond to any Flexible Working request within two months of receipt, unless an extension is agreed with the employee. The current timescale allows three months for a decision.
- Employers will be required to consult with the employee before refusing a request, although the Act sets out neither a minimum standard for consultation nor any indication of what such consultation should include.
- Employees will no longer be required to set out in their application what effect they think agreeing with this request may have on the employer and how the employee thinks any effects they identify might be mitigated or avoided
It is also important to note that the Act does not:
- Remove the requirement for employees to have a minimum of 26 week’s service before making a statutory request for Flexible Working. Although the government has indicated that it intends to remove the service requirement to allow employees to make Flexible Working requests from Day 1 of employment, this Act does not provide for that change.
- Introduce a formal right of appeal where a flexible working request is rejected. ACAS recommend that employers do offer a right of appeal in such circumstances (ACAS Code of Practice on Flexible Working) but the Act does not make this a legal requirement. Employers should be aware that ACAS Codes of Practice are often adopted by tribunals to assess the reasonableness of an employer’s process, so it is good practice to offer a right of appeal in any case.