Changes to the law on Flexible Working

August 4, 2023 Sara Maghouz Maghouz

Flexible Working Rules 2023 – what has changed?

In the last few weeks, the Employment Relations (Flexible Working) Act 2023 has completed its final leg through parliament and received Royal Assent on 20 July 2023. Only a few years ago flexible working was seen as a luxury, however following Covid-19, flexible and hybrid working has become the norm and is seen by many as a way to accommodate a healthy work-life balance for employees.

Flexible working offers employees more control over their working hours, location, or pattern of work allowing them to mould their work schedule to suit their individual needs and personal circumstances. Flexible working arrangements include but are not limited to; flexible working hours; remote working; compressed work week; job sharing or annualised hours.

This landmark legislation aims to empower employees with greater control over their work life balance and improve workplace flexibility for all.

What the Employment Relations (Flexible Working) Act 2023 includes:

The act introduces several significant provisions to enhance the flexible working rights of employees:

Two flexible working requests in any 12-month period: Employees will have the right to submit up to two flexible working requests within a 12-month period. Previously, employees were only permitted to submit one request within a 12-month period.
Timely processing of requests: Employers are now required to respond to the flexible working requests within two months unless agreed otherwise. Previously, employers had three months to consider and respond to a request.
Consultation with employees: Employers are now obliged to engage in consultation with the employee before refusing a request. Although the legislation does not specify a minimum requirement for the consultation process, it emphasises the importance of having meaningful discussions with an employee regarding their request.
Elimination of requirement for detailed explanations: Employees will no longer be required to provide elaborate explanations about the potential effects of their flexible working arrangements or how their employer should handle it.

What the new act does not include:

While the Employment Relations (Flexible Working) Act 2023 is a significant step towards fostering a flexible and balanced work environment for the UK workforce, there are some aspects that were initially envisioned would be included in the act that were not incorporated into the current act:

Still requires 26 weeks of service: The government has expressed its intention to create secondary legislation to address the 'day 1' right for flexible working, which was speculated to be a part of the act. However, for now, employees will still need to have completed 26 weeks continuous service before they can submit a request.
Lack of requirement for right of appeal: The act does not mandate employers to offer a right of appeal if a flexible working request is rejected. While ACAS has recommended such an appeal mechanism, it remains voluntary rather than a legal requirement.
Vague guidance on consultation and alternative arrangements: The legislation lacks clarity on the depth of the consultation required before an employer can refuse a request and does not stipulate the need for offering alternative arrangements if the initial request is rejected.

ACAS is updating its statutory Code of Practice on handling requests for flexible working to reflect the anticipated reforms to legislation and has acknowledged the significant shift in flexible working in the workplace and changing views since their existing Code was published in 2014.

Whilst the legislation may not be implemented as of yet, we advise that it is best for employers and employees alike to familiarise themselves with the new changes. In a post Covid-19 world, flexible working and remote working is becoming the norm. To ensure employers remain connected with their workforce and are fulfilling their obligations, it is worth employers considering whether they have appropriate flexible working or hybrid working policies in place. Having the necessary policies in place will ensure that employers and employees are aware of what is expected of them and will contain the necessary protections for both parties.

Should you require any further advice on the new Employment Relations (Flexible Working) Act 2023, advice on the relevant policies to implement or amend, then please feel free to schedule a call with our Employment Specialists.