Changes to flexible working – new legislation
24 July 2023
The Employment Relations (Flexible Working) Act 2023 has now completed its passage through Parliament and is awaiting Royal Assent (an implementation date).
What does the Act confirm?
- Eligible employees will now be able to make two flexible working requests in any period of 12 months. Previously, employees could only make one statutory request a year.
- Once a request is made, an employer must deal with it within 2 months of it being made if no extension is agreed. An employer previously had 3 months to respond to a request.
- Employees no longer have to explain how a flexible working change would affect their employer, nor do they have to explain how they’ll deal with this change. Previously, employees were required to supply this information as part of their statutory request.
- The Act also changes the way that a request is dealt with by an employer. Namely that employers are no longer able to refuse a request outright until they have adequately consulted with the employee to discuss alternative arrangements. Nonetheless, the specifics of what the consultation should include have not been specified and this is therefore open to interpretation by an employer i.e., what is reasonable in the circumstances.
- An employer is also not required by the Act to offer a right of appeal in the event that a flexible working request is rejected. However, the ACAS Guidance still recommends that employees are given the right to appeal and we would advise employers to continue to follow the ACAS Code
Interestingly, the Act does not provide that flexible working becomes a ‘Day 1’ right as we had anticipated. Therefore, an employee must still have at least 26 weeks’ service before they are able to make a request for flexible working. The Government has indicated that it will create a day one right through secondary legislation, although none has appeared as of yet and we will keep you updated in that respect.
What Does the Government mean by Flexible working?
Flexible working is essentially any working pattern/ arrangement that is not a standard 9-5pm. Flexible working could include a variety of working arrangements such as: Hybrid working, staggered hours, job – sharing, flexitime or working from home.
Why is flexible working important to employees?
Flexible working and the ability to request a flexible working arrangement is most important to employees because it supports a better work- life balance. Research has shown that this was the primary reason for most employees to make a request. It has also been described as a way of making commutes more controllable and easier to adapt. More recently, given the current financial crisis, employees also feel it is a way they can save money e.g., saving on fuel costs/ transport fees.
The new rules aim to make it easier for employees to make a request and increase staff wellbeing by allowing them to have a greater say in where, how, when they will work. It is reported that 47% of an average workforce would not feel comfortable requesting a flexible working pattern. Giving employees greater control over their working lives could lead to a much more productive and enthusiastic workforce. It is thought that the changes should aim to improve staff retention and promote health relationships between staff and management.
You need to bear in mind that flexible working requests can also be made to support caring responsibilities or to accommodate health issues and in those circumstances, employers should take advice on the implications of rejecting a request.
What you need to do now
In anticipation of an implementation date, employers should consider updating their flexible working policies to accommodate the changes made by the Act. If you require an assistance, or wish to discuss a specific flexible working request, please do not hesitate to contact a member of the employment team at Backhouse Jones on 01254 828 300 or here.
