Law reforming flexible working receives Royal Assent

On 20 July 2023, the Employment Relations (Flexible Working) Act 2023 received Royal Assent. Once it takes effect (which will likely be mid-2024), it will overhaul the existing regime to enable more requests for flexible working to be made, helping employees balance work and home life.

The need for change

The right to request flexible working was first introduced, albeit in a more limited form, in April 2003. Fast forward two decades and it is clear that employees seeking flexible working arrangements still face certain challenges. For example, flexible working is often seen as something an employee must earn or a ‘perk' because of the 26 weeks’ service requirement. Some employees have also feared negative career consequences because of their employer’s and/or colleagues’ perception of flexible working affecting wider take-up of the right. 

However, the pandemic accelerated new ways of working, leading to a shift in attitudes towards flexible working and highlighting the mutual benefits that can be gained from embracing greater flexibility.

Acting on lessons learned, the government hopes that reforming the regime will give employees more confidence to make a request, allow more employees to access flexible working, and help employers to recruit and retain staff.

Key changes 

The changes to the existing regime are summarised in the table below.

	Existing position	New position
Qualification for right	26 weeks’ continuous service	No period of qualifying service required   N.B.  Although the “day one” right is not included in the Act, the government intends to implement it through regulations alongside the Act.
Frequency	One request per year allowed	Two requests per year allowed
Content of request	Employees must explain the effects of their flexible working request on their employer	No requirement to explain the effect of the flexible working request on their employer
Rejecting a request	No requirement to consult	Employers must consult with employee first (see below)
Time to respond to requests	Three months	Two months

We explored the policy reasons behind these changes in our previous blog here. 

Importantly, no changes will be made to the statutory list of business reasons for rejecting flexible working requests nor will there be a requirement for flexible working to be available by default (despite having been a key tenet of the Conservative party’s 2019 manifesto). There will still be no statutory requirement for employers to offer a right of appeal, although it continues to be good practice and recommended by Acas.

Preparing for change 

The changes to the regime are likely to come into force next year. In the meantime, Acas is consulting on an updated Code of Practice to reflect both the changes in process and how employers should approach flexible working requests. The Code seeks to challenge outdated attitudes towards flexible working, encouraging open mindedness and meaningful engagement with requests. In particular, it advises that the default position should not be to reject requests. 

The updated Code will also guide employers through the new requirement to consult before rejecting a request. This involves holding a formal meeting with the employee to discuss the request and explore available options. In practice, this will reflect what many employers already do and will not be a material change in their process. But for those that don’t already do this, the hope is that it will encourage a more transparent, two-way conversation about flexible working requests. 

In advance of the changes, employers will need to consider what updates will be required to existing policies to align with the new statutory requirements and whether to incorporate best practice changes from the new Acas Code (when published). For example, the new Code extends the categories of individual who can accompany employees at meetings. Whereas it is currently only work colleagues, the updated Code allows trade union representatives and officials employed by a trade union to accompany an employee providing they have made a ‘reasonable request’. Acas recognises that this may be helpful in supporting both parties to reach a mutual agreement. 

Removing the minimum service requirement and allowing two requests per year will likely lead to more requests being made. Employers should therefore ensure that management are prepared to deal with requests and consider whether additional training may be required to familiarise them with the new rules and guidance. Although employers will have less time to make a decision, it is important that they do not allow this to jeopardise their careful and reasonable consideration of any request or compliance with the Code. As with the current Code, the tribunal will be able to take into account any failure to comply with the Code when deciding relevant claims.