The Employment Relations (Flexible Working) Act 2023: What employers need to know

The right for employees to make flexible working requests is changing. The Employment Relations (Flexible Working Act) 2023 has passed through parliament and whilst some things are remaining the same, there are some imminent changes that employers should be aware of.

What will remain unchanged?

Under the Employment Relations (Flexible Working Act) 2023:

• the right to make a flexible working request is not made a ‘day one right’. Employees still need to have 26 week’s service before they have the right to make a request. Whilst a ‘day one right’ may be introduced later through secondary legislation, it is not part of this Act.
• this remains a ‘right to request, not a right to have flexible working’ and the eight statutory business grounds on which an employer is entitled to refuse a flexible working request, will remain, these are:
• planned structural changes
• burden of additional costs
• quality or standards will suffer
• performance will suffer
• recruitment of additional staff is not possible
• work cannot be reorganised among existing staff
• meeting customer demand will be more difficult
• lack of work during times the employee requests to work
• employers still do not have to offer a right of appeal if a flexible working request is rejected, although the ACAS Code of Practice on Flexible Working recommends a right of appeal is offered by employers.

What will change?

Once this Act comes into force the following changes will take effect:

• Instead of the employee only being allowed to make one flexible working request in a 12-month period they will have the right under the new Act to make two flexible working requests in any 12-month period.
• Instead of dealing with a flexible working request within 3 months of receipt, employers will now only have 2 months to process and communicate the outcome of a flexible working request to an employee, unless they have agreed to an extension.
• Employers are required to ‘consult’ with employees before refusing a flexible working request. However, what consultation must include and how rigorous it should be is not set out in the legislation.
• Employees will no longer have to set out in their flexible working request the impact any change they request will have on the business or how any negative effects can be mitigated.

Summary

It is prudent to familiarise yourself and train managers and HR employees on your and your employees’ new obligations under the Act and to refresh current practices relating to flexible working requests. You will need to update any flexible working or related policies you have in place. Our expert employment solicitors can help you with drafting or updating these policies to ensure that they are legally compliant and specific to your business.

Under the Act, more flexible working requests are likely to be made, and so you will need to ensure that your business is making consistent and non-discriminatory decisions when dealing with these requests. It is essential that where you reject flexible working requests,  you are able to justify the decision. If you would like support or guidance with this, our employment lawyers can help.