Flexible Working Act 2023

Employment Relations (Flexible Working) Act 2023

The Employment Relations (Flexible Working) Bill has received Royal Assent, becoming the Flexible Working Act 2023.

Scope of the Flexible Working Act 2023

The Employment Relations (Flexible Working) Act 2023, received Royal Assent on Thursday 20 July 2023, will enable the following changes to be made to the current flexible working regime (reflecting the Government’s December 2022 response to its flexible working consultation):

Although this Act is now on the statute books, the new regime is not expected to take effect until 6 April 2024, with further details to be contained in forthcoming regulations (not yet published).

• Require employers to consult with their employees, to review available options, before rejecting a flexible working request;
• Allow employees to make two (not one) flexible working requests in any twelve-month period;
• Require employers to reach a decision to requests within two (not three) months; and
• Remove the existing requirement for employees to set out what effects, if any, the change would have on the employer and how the effects might be dealt with.

The Flexible Working (Amendment) Regulations 2023 remove the requirement that an employee must have 26 weeks’ service in order to be able to make a request for flexible working. The change makes the right to request flexible working a Day One right. This new right will come into effect for flexible working requests made on or after 6 April 2024.

ACAS Consultation Launched

Acas has recently launched a consultation on its Draft Code of Practice – handling flexible working requests. The updated Code of Practice takes into account changes in working practices since the COVID-19 pandemic and proposed changes to the rules on flexible working (discussed below). It is also planning to update its non-statutory guidance which sits alongside the Code.

The aim of the Code is to provide employers, employees and representatives with a clear explanation of the law on the statutory right to request flexible working, alongside good practice advice on handling requests in a reasonable manner. It also encourages employers to adopt, what it refers to as a ‘more positive’ approach to flexible working which includes ‘fostering an environment in which requests are not rejected by default without open-minded consideration and meaningful dialogue’.

The updated Code:

• extends the categories of individuals who may accompany an employee at meetings to discuss a flexible working request to correspond to those that apply to disciplinary and grievance hearings;
• recommends that if an employer rejects an application, it should give the employee ‘such additional information as is reasonable’ to help the employee understand why it has turned down their request. This means that an employer will need to do more than just cite one of the eight business reasons it is relying on to reject the request; and
• recommends that an employer should allow the employee to appeal if it rejects their request.

You have until 6 September 2023 to respond to the consultation.

Practical Implications

It should be noted that the changes do not provide a default right to work flexibly – it will remain a right to request (which an employer may refuse). Employers should review and amend their flexible working policies and procedures to comply and ensure that managers are aware of the reduced response time and the duty to consult before any request is refused.

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