Flexible Working Requests Amendments To Become Law
If you have attended any of our HR Forums recently, you will be familiar with the proposed changes to flexible working requests which have been making their way through the parliamentary process over the past year.
These amendments have now been agreed and are due to receive Royal Assent today, 20 July 2023 which means the amendments will become the new law. We are however waiting confirmation as to when the amendments will physically come into force.
This does mean that we now know the final form of the changes to the current flexible working request process, which is set out in the Employment Rights Act 1996. When it comes into force, The Employment Relations (Flexible Working) Act 2023 will make the following changes to the current flexible working regime as we know it:
- Rather than the current one request per 12 months, Employees will be entitled to make two flexible working requests in a 12-month period;
- Employers will need to deal with any such request within two months, which is a reduction to the current period of three months. Extensions to this time limit can still be discussed and agreed with the Employee.
- If an Employer is considering refusing a request of flexible working, they must consult with the Employee before doing so, the current laws are silent on this point.
- Employees are no longer required to explain what effect their request may have on the Company and how they consider this could be dealt with. Employees often found this element of the application difficult to consider and comply with.
There are however a couple of important points that the Act does not cover. It has been widely reported that the amendments to the flexible working regime would include making the right a ‘Day 1’ right and that there would be no period of qualifying service needed before an Employee can make such a request.
However, the Secretary of State needs to pass independent legislation to make this change and at present it is unknown when this will occur. As it stands, Employees still require 26 weeks minimum service to make a flexible working request under the new regime.
The Act also does not require an Employer to offer the right of appeal and it does not set out the requirements of the consultation process that should be followed. However, ACAS has just launched a consultation on a new Code of Practice for flexible working requests that addresses these missing points by way of its best practice guidance. The consultation is to update the current ACAS Code of Practice which is now out of date, so that it falls in line with the new legislative reforms and changes in thinking in relation to requests to work flexibly. The Code will be taken into account by Employment Tribunals when considering relevant cases so it is an important addition to any legislative changes.
The commentary on these amendments makes for interesting reading. Family friendly rights groups, such as Mother Pukka, are understandably delighted by the confirmation that these changes are coming into force. Others are more skeptical about the practical impact of the changes and see it more as an opportunity for Employers to tell their Employees that they cannot work flexibly, two times per year.
The overwhelming theme of the commentary however seems to be a misunderstanding on what flexible working actually is. This does not just mean working from home. Whilst a request to work from home is of course a way of working flexibly, this phrase encompasses many more alternative ways of working, such as working compressed hours, starting or finishing earlier, having set days off, working split days, job sharing, part time or part year working and many other situations that can be specific to the role and individual concerned.
The headline point to take away from this is: the right to request to work flexibly is changing, and the expected tolerance and how such requests are dealt with is changing and will continue to change and be guided by the ACAS Code of Practice when this is updated. Employees may need to work flexibly for a variety of reasons either on a permanent or a temporary basis and such requests should be dealt with openly and transparently, with a true consultation held with the Employee to consider their request in order to avoid falling foul of the new legislation and Code when it is implemented.
If you have any questions about flexible working requests or if you have a query on another area of employment law, please contact the Employment Law Team.
Head of Employment
t: 01246 564012
t: 01246 564002
t: 01246 564035
Specialist Employment Paralegal
t: 01246 560587