The Employment Relations (Flexible Working) Act 2023 ("the Act") has completed its pathway through Parliament and received Royal Assent (became law) on 20 July 2023. The Act makes some significant changes to an employee's right to request flexible working, although it does not make the right to request a "day 1" right.
How does the Act change the current regime?
The significant changes made by the Act are:-
- Employees will be able to make two statutory requests in any 12 month period
- The employer must deal with a request within two months of its receipt, unless an extension is agreed
- The requirement for the employee to explain what effect, if any, the change applied for would have on the employer's business and how that effect might be dealt with has been removed
- Employers must consult with the employee before refusing a request (although there is no minimum standard for what that consultation needs to look like in the legislation itself)
The Act does not require employers to offer a right of appeal if a flexible working request is rejected, nor does it amend the eight statutory reasons that employers can rely upon to refuse a request. Although offering an appeal is not therefore a legal requirement, it is included in the draft ACAS Code of Practice on handling requests to work flexibly ("the draft Code"). The draft Code updates the existing Code of Practice on handling requests to work flexibly to reflect the new legislation. Once finalised, the draft Code will be taken into account by employment tribunals when considering relevant claims.
Given its relevance in any subsequent employment tribunal claim, the draft Code does go some way towards setting a standard for consultation. In particular, it states that "During the consultation meeting the employer and the employee should carefully consider and discuss any alternative flexible working options that may be available and suitable for both the business and the employee". It also states that a formal meeting should take place without unreasonable delay, it should take place in a private place and that if a reasonable request to be accompanied to any meeting is made it should be allowed. The draft Code is currently under consultation and can be found here.
What about making the right to request a day 1 right?
Ironically, probably the most highly publicised anticipated change to the right to request regime was that it is to become a day 1 right, rather than requiring at least 26 weeks of service. However, that change was not included in the Act. Instead, secondary legislation is required to make that change and it is anticipated that this will be in force at some point in 2024, at the same point that the Act itself comes into force.
