The Employment Relations (Flexible Working) Act 2023 received Royal Assent on 20 July 2023 and it makes significant changes to the statutory right to request flexible working.
According to the Government press release that day, it expects the Act and secondary legislation to come into force approximately a year after Royal Assent, to give employers time to prepare for the changes.
Before looking at the Act’s changes to the statutory framework, it is important to remember that the statutory right to request flexible working is distinct from any other flexible working arrangements that an employer may put in place. At a time when many employers are struggling to recruit good quality, skilled candidates, offering flexible working may help to attract and retain the best people, giving those employers a competitive edge in a difficult job market. There are a wide range of options from part-time working, compressed hours, term-time hours, remote working and hybrid working.
What are the changes?
Currently, the right to request flexible working is available to employees if they have 26 weeks’ continuous employment. A request can be made once within any 12-month period. Employers can only reject a request for one of eight statutory business reasons such as the burden of additional costs, the inability to re-organise work among existing staff or a detrimental impact on quality or performance.
The Act will:
- Allow employees to make two requests in each 12-month period rather than one.
- Remove the requirement on employees to make suggestions as to how their request would impact the employer.
- Require employers to consult before rejecting a request.
- Reduce the employer’s response period to two months from the current three months.
Although the Government has previously stated that the right to request flexible working will become a day one right this isn’t in fact covered in the Act itself but will be dealt with by separate legislation.
Note that there will be no change to the eight statutory business reasons for rejecting a request.
Acas Code of Practice
There is already an Acas Code of Practice on handling in a reasonable manner requests to work flexibly (published in 2014) as well as guidance on making a flexible working request and responding to a request.
On 12 July 2023, Acas published an updated draft Code of Practice for consultation and the consultation period ends on 6 September 2023. Acas will also be updating its guidance.
Acas is updating the Code of Practice to reflect the anticipated legislative changes next year, the significant shift in flexible working and changing views since the Code of Practice was first published.
The updated Code of Practice seeks to encourage a more positive approach to flexible working, and “an emphasis on fostering an environment in which requests are not rejected by default without open-minded consideration and meaningful dialogue.”
The updated Code of Practice states that employers must not reject a request without first consulting the employee whether in person or remotely or on a telephone call. There should be a reasonable discussion and consideration of the request and alternative flexible working options should be explored.
All requests, including any appeals, must be decided within two months unless the employer and employee agree to extend this period and if they do, this should be confirmed in writing.
There are undoubted business benefits to flexible working for both parties from improved productivity, increased job satisfaction and staff engagement and retention. For those employers who already offer wide-ranging flexible working options to all members of staff, regardless of their length of service, the Act may have relatively little impact. For those who do not, they will need to update their flexible working policies in due course and ensure that the managers or members of HR who consider flexible working requests are aware of the new Act and its provisions and the updated Acas Code of Practice. Training on both may be helpful.
Don’t forget that 2024 is also likely to see the introduction of the new right to carer’s leave. The Carer’s Leave Act 2023 will provide for one week of unpaid leave in any rolling 12-month period (pro-rated) for part-time employees who are either arranging or providing care to dependants. This will be a day one right and implementation will not be before April 2024.
For more details about carer’s leave and other new rights for parents see our earlier article.
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