Expansion to Employees Rights to Request Flexible Working

On 20 July 2023, Royal Assent was given to the snappily titled Employment Relations (Flexible Working) Act 2023. As a result, there will be some significant changes to the rights of employees to request flexible working.

Employees may continue to request a change to either their number of working hours, the times they work or their place of work – this can include for example, part time or term-time working, flexi-time, compressed hours, or working from home.

Under the new legislation:

• An employee will be able to make two applications for flexible working in any 12 month period, rather than the current right to make only one.
• An employee will no longer need to explain what affect the requested changes will have on the employer and how any changes may be dealt with.
• The employer must deal with the application, providing the decision and dealing with any appeal within two months, a reduction from three months.
• The employer must consult with the employee before rejecting the application – such consultation will include a formal meeting.
• Although the Act does not state the right to apply for flexible working is a “day one” right, the Government have confirmed that separate legislation will provide for just that. This will mean that employees can apply from the very first day of employment and do not require the current 26 weeks service.

The ACAS Statutory Code of Practice and it’s Guidance will also be updated to reflect the changes, ACAS having launched its consultation on the updates on 12 July 2023.

All requests, as before, must be considered reasonably, meaningfully and with an open mind. Employers should weigh up the effect of the change on the business and the employee, and assess the benefits and impact on both parties in either accepting or rejecting the request. The legal basis on which requests can be refused will not change, and they are:

• the burden of additional costs
• an inability to reorganise work amongst existing staff
• an inability to recruit additional staff
• a detrimental impact on quality
• a detrimental impact on performance
• a detrimental effect on ability to meet customer demand
• insufficient work for the periods the employee proposes to work
• a planned structural change to the business

During the pandemic, many businesses were forced to work remotely and many, to a greater or lesser extent, have continued some form of hybrid working. It will, in some cases, be much more difficult to justify refusing an application on one of the eight business reasons.

It should be noted that these changes do not provide for a right to work flexibly, they simply extend the rights to apply for flexible working.

The changes will not take effect until sometime in 2024, the exact date to be confirmed.

For more information on flexible working, or other employment law and HR matters, please contact Dawn Gallie.