21/07/2023

Changes to Flexible Working Requests (July 2023)

The Employment Relations (Flexible Working) Act 2023 has now passed through all stages and received Royal Assent on 20 July 2023.

In its Press Release the Government stated ‘As well as clear benefits to workers, the measures are also good for British business. Research has shown companies that embrace flexible working can attract more talent, improve staff motivation and reduce staff turnover – boosting their business’s productivity and competitiveness.’

It is expected that the measures in the Act and secondary legislation will come into force in a year’s time, to give employers time to prepare for the changes and likely to be in and around April 2024.

What changes

When in force it will change the current flexible working provisions in Great Britain by:

1. Expressly allowing flexible working applications to request changes to Working Hours, Times or Location.

In reality most business accepted allowed applications to be made on these grounds.

2. Allow two applications to be made in any 12-month period.

Currently only one application is allowed in any 12-month period. 

3. Providing that employees do not need to explain effects of changes, nor do they need to explain the impact that granting the request would have on their role and how that might be dealt with.

Currently employees need to detail this in their application.

4. Applications cannot be refused without consultation with the employee.

Currently employers only need to discuss the request with the employee; at present there is no detail about the quality of consultation that will be required which may be fleshed out in secondary legislation.

5. Decisions must be issued within 2 months.

Currently the period is 3 months.

Commentary 

It was anticipated this would be a Day 1 Right. However, under the law as currently drafted employees still currently require 26 week’s service to be eligible.  The Government has indicated this will be introduced through separate, secondary legislation, but no date has yet been provided. The new laws are not expected to take effect until 6 April 2024, with further details to be contained in forthcoming regulations (not yet published).

The law will only apply in England, Wales & Scotland and with the continuing the stalemate at Stormont it is further serving to widen the gap in laws between NI and the rest of GB.

ACAS Consultation on update Code of Practice on handling requests for flexible working

In conjunction with the legislative changes detailed above, ACAS (the equivalent of the LRA in GB) has launched a Consultation on Updates to its Code Of Practice on handling requests for flexible working-  Consultation on Updates to its Code Of Practice on handling requests for flexible working

The purpose of that Consultation is ‘to provide employers, employees and representatives with good practice advice on how the new flexible working rules should work in practice. Statutory Codes of Practice are not legally binding, but they are taken into account by courts and employment tribunals when considering relevant cases.’

The ACAS Consultation closes on 6 September 2023.