In various previous posts we have highlighted the bumper pack of worker rights legislation making its way through Parliament and the first proposals to receive Royal Assent (the final stage to becoming binding law). We can now add the Flexible Working Bill to that list, as it became the Employment Relations (Flexible Working) Act 2023 (the “Act”) on 20 July 2023 after completing its journey through Parliament and receiving Royal Assent.

What is the impact of the Act?

• Employees are now able to make two flexible working requests in any 12-month period (rather than one);
• Employers must respond to flexible working requests within two months of receipt rather than three months;
• Employers cannot refuse the request unless they have first ‘consulted’ with the employee; and
• Employees no longer need to explain the effect of any flexible working request and how to mitigate that effect.

What is not included in the Act?

• Despite speculation that the Act would grant employees a day-one right to request flexible working, this is not included in the Act. Therefore, employees currently still need 26 weeks’ service before they can make a flexible working request;
• There is no definition of what is meant by a requirement to consult employees, which creates some uncertainty for employers; and
• The Act does not provide a right of appeal if a flexible working request is rejected. An employer may choose to allow an appeal and the ACAS Code of Practice on flexible working recommends that an appeal is offered.

Implications of the changes

The ability to work flexibly has become a key priority for many employees in the post-pandemic workplace and while the changes introduced by the Act do positively advance flexible working rights, from an employer’s perspective, relatively little will change in practice. The main impact could be a potential increase in the number of flexible working requests received given that employees will be able to make two requests each year.

The Act encourages employers to actively engage with employees to jointly understand the flexible working request and places the burden of justifying any such refusal on the employer. The lack of certainty around the degree of consultation required and the lack of a right to appeal gives employers an element of discretion regarding their approach and process. Employers will need to put in place clear processes to ensure that a consistent and reasonable approach is adopted across the organisation. 

Looking ahead

The government has promised to introduce the day-one right to request through secondary legislation and employers will need to be alert to this in due course. The government indicates that it expects the measures in the Act and secondary legislation to come into force in approximately one year’s time. This gives employers time to prepare for the changes by updating policies and upskilling managers on the changes. 

In addition, a call for evidence recently opened seeking views from individuals and businesses on their experiences of non-statutory flexible working, including how it operates in practice. The call for evidence is open for submissions until 7 November 2023 and responses will help to inform the government’s future flexible working strategy.

Lastly, ACAS is updating its Code of Practice (and non-statutory guidance) to align with the changes introduced by the Act. It is consulting on those changes, and welcomes any contributions until 6 September 2023.

If you have any questions about the Act and the implications for your business, please reach out to your usual member of our team or contact Deloitte Legal.

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