The Employment Relations (Flexible Working) Bill received Royal Assent on 20 July 2023. The Bill was introduced to Parliament in June 2022 as a Private Member’s Bill and received government backing. The Employment Relations (Flexible Working) Act 2023 (the Act) will enhance the existing right for employees to request flexible working arrangements. The government confirmed in its press release on 20 July 2023 (the Press Release) that the measures in the Act and secondary legislation (i.e. regulations) are expected to come into force in a year’s time, taking us to summer 2024.
Changes to the current statutory flexible working regime
The Employment Relations (Flexible Working) Act 2023 amends the existing statutory flexible working regime set out in the Employment Rights Act 1996. The changes are as follows.
- Employers will be required to consult with their employees before rejecting a flexible working request. Under the existing regime, there is no consultation requirement.
- Employees will be able to make two flexible working requests in any twelve-month period rather than the current limit of one request per year.
- Employers will be required to respond to flexible working requests within two months. This is shorter than the existing requirement to respond to a request within three months.
- Employees will no longer be required to set out how the effects of their flexible working request might be dealt with by their employer.
The government will also introduce secondary legislation to give employees a “day one” right to request flexible working with the intention that this will take effect at the same time as the changes in the Act. Currently, employees must have at least 26 weeks’ continuous employment to make a request.
Importantly, the Act does not create an automatic right to work flexibly. The right remains one of being able to request to work flexibly. Neither does the Act amend the existing eight statutory grounds for refusing a flexible working request which are set out in the box below.
1- The burden of additional costs 2- Detrimental effect on ability to meet customer demand 3- Inability to re-organise work among existing staff 4- Inability to recruit additional staff 5- Detrimental impact on quality 6- Detrimental impact on performance 7- Insufficiency of work during the periods the employee proposes to work 8- Planned structural changes |
Consultation on changes to the Acas Code of Practice on handling flexible working requests
On 12 July 2023, Acas announced a consultation on updates to its Code of Practice on handling flexible working requests (the Code of Practice) to reflect the legislative changes outlined in the Act and the significant move towards more flexible working arrangements since the Code of Practice was published in 2014, particularly after the Covid-19 pandemic. The draft Code of Practice seeks to encourage a more positive approach to flexible working and promote good workplace practice. A key focus will be on ensuring that flexible working requests are not rejected by default, without due consideration and an open dialogue between the employer and employee. One of the practical changes is an extension of the categories of companion who should be permitted to attend meetings with employees (to include a trade union representative and an official employed by a trade union as well as a work colleague) to discuss flexible working requests and a reference to the anticipated right to request a predictable working pattern under the Workers (Predictable Terms and Conditions) Bill which is currently making its way through Parliament. For further information on that Bill, please see our Law-Now Workers’ rights to request predictable working.
The guidance in the Code of Practice is taken into account by employment tribunals when considering relevant cases.
The consultation closes on 6 September 2023.
Call for evidence on non-statutory flexible working
In the Press Release, the government also announced a call for evidence in relation to non-statutory flexible working arrangements (such as those following informal discussions between an employee and their manager and ad hoc arrangements). The call for evidence seeks views from employers and employees on their experiences of non-statutory flexible working, including how it operates in practice. The feedback will be used to inform the government’s flexible working strategy going forwards.
The call for evidence closes on 7 November 2023.
Comments
Since the pandemic, employers have become increasingly used to dealing with requests (made both formally and informally) from employees to work in a flexible manner, both in terms of hours and location. Implementation of the Act only goes to reinforce that this trend will continue. While there is no need for employers to take any immediate actions ahead of the implementation of the changes next year, it would be worthwhile preparing for the anticipated broadening of the right to request flexible working to all employees which may lead to an increase in such requests. This could include reviewing existing flexible working practices, policies and procedures to consider where adjustments may be required to ensure compliance with the Act and the best practice recommendations in the draft Code and implementing training for managers involved in considering such requests. It is also a useful prompt for employers to re-visit their strategy around flexible working generally, now that approaches implemented in the wake of the pandemic have had time to bed in.
Please do get in touch with your usual CMS contact if you would like to discuss the potential implications of any of these measures for your business and workforce.
This article was co-authored by Taiya Cooper (Solicitor Apprentice) and Olivia Christie-Miller (CMS Academy Participant).
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