The Employment Relations (Flexible Working) Act 2023

The Employment Relations (Flexible Working) Act 2023 has successfully passed through Parliament and received Royal Assent on 20 July 2023.

As its name suggests, the Act intends to give workers more flexibility over when and where they work. Below we outline the current state of play before going on to consider what changes the Act will make.

Current position

The statutory ability to make a request for ‘flexible working’ has been available, in some form, since 2003. As it stands currently, it can cover a wide range of work patterns such as flexitime, part-time, job sharing, homeworking. It is most often requested by those who have responsibilities outside of work, like caring responsibilities, but can equally be used by those who want to achieve a better work-life balance. An employee isn’t required to provide a reason for their request, but such information may be helpful when the employer is considering whether to grant it.

The request

The right is to make a request to change the terms and conditions of employment – not to have that request accepted. To make a request, the requestor must be an employee and must have been employed for 26 consecutive weeks. The request must:

• State that it is an application for a change in terms and conditions under the relevant legislation;
• Specify the change applied for and the date this should become effective; and
• Explain what effect the change would have on the employer (if any) and how any such effect might be dealt with.

The request must be in writing, be dated and state whether a previous application has been made by the employee. Only one request can be made in every 12 month period, even if the request was only for temporary changes or the request is rejected by the employer in its entirety.

As noted, there is no requirement for the employee to provide a reason, but if the reason might be related to a protected characteristic or if the employer is dealing with competing requests, they may enquire with the employee as to their reason. In any event, an employee may wish to include their reason to support their application.

Employer’s consideration

When an employer receives a request, they are required to consider it in a ‘reasonable manner’. Acas suggests the basic requirements of reasonableness are to discuss with the employee, consider the request carefully and to deal with the request promptly. However, it should be noted that these are not mandatory steps and what is reasonable will depend on the individual circumstances.

An employer may only refuse the request for a ‘valid business reason’. There are 8 statutory reasons for refusal, including matters such as the burden of additional costs or a detrimental impact on ability to meet customer demand.

An employer must notify the employee of the decision within three months of the date of the application unless a longer period for consideration is agreed with the employee.

If they reject a request, there is no statutory right for the employee to appeal, but the employer may offer an appeals process at their discretion.

The Employment Relations (Flexible Working) Act 2023

The 2023 Act makes a number of changes to the current flexible working regime. These are:

• Allowing employees to make two flexible working requests within a 12 month period;
• Mandatory consultation between the employer and the employee who makes the flexible working request (although there is no guidance as to what this must involve);
• Shortening the time period for response to a flexible working request to 2 months; and
• Removal of the requirement for the employee to explain the effect (if any) of the change on the employer and how that effect might be dealt with.

As the Bill passed through Parliament, there was discussion that the right to request flexible working would become a ‘Day 1’ right. Although expected to feature, this does not appear to have made it to the Act. Nevertheless, the Government has since stated that it will introduce secondary legislation to bring this into force, but has not done so yet. In their press release, they advise they expect both pieces of legislation to come into force approximately one year after they receive Royal Assent.

If you or your organisation need any help in dealing with flexible working requests or updating your existing flexible working policy to take account of these changes, our specialist employment team would be happy to assist.