This is a cross-posted article, originally written on the Pure Employment Law Website and has now been posted here. Please note the date on which this article was posted originally and that any information within may have changed.
30 July 2023
The Employment Relations (Flexible Working) Act 2023 has now finally finished working its way through Parliament and has received Royal Assent. No implementation date has been announced yet, but it is expected to be soon.
Although the new law (which is only 2 pages long!) will involve some changes to the existing position, and the MPs who initiated it have described it as a “big step forward”, it is also important to note that there were some key things that will not be changing, which some people are seeing as a missed opportunity.
What will change
Once the Act comes into effect, employees will be able to make two flexible working requests in any 12 month period (rather than one, as is the case now).
When employees submit a request they no longer have to explain what effect they think it would have if the employer agreed to it and how that effect could be dealt with. (In practice, this was not usually rigidly adhered to anyway).
An employer now has 2 months to deal with a flexible working request (unless an extension of time is agreed with the employee), rather than the current 3.
The employer should not refuse the employee’s request unless the employee has been ‘consulted’ (but significantly, the Act does not define what the consultation has to consist of, or how long it is required to last. Therefore in theory, an employer could argue that a brief exchange of emails could amount to consultation).
What won’t change
Some people had anticipated that the Government might take the opportunity to change the law to remove the qualifying period of service before an employee can make a request. However, this has not changed, so employees still need 26 weeks’ service at the date they submit the request. The Government has committed to changing this in future so that the right to request flexible working is a ‘day one’ right, and has said they will introduce regulations to do this soon, but there is no sign of that happening yet.
There is still no requirement to offer an appeal against a refusal (despite it being recommended in the ACAS Code on Flexible Working). In practice, it is best for employers to offer an appeal for a number of reasons, one of which is that when you deal with a flexible working request it isn’t just about compliance with the Act, as issues such as discrimination can also be involved. Therefore having an appeal process can allow you the opportunity to address any outstanding concerns internally before they escalate into expensive claims.
The new law also does not change the fact that employers have a duty to deal with any flexible working requests reasonably and that if they wish to reject a request they have to rely on one of the eight statutory grounds for refusal. (In practice, it is not usually difficult for employers to establish that one or more of the eight grounds applies).
What do employers need to be aware of?
It is definitely worth getting your flexible working policy updated to ensure that it reflects the new law in terms of the points that are changing. We will of course update you as soon as there is any news on when the new Act will become law.
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.