Big changes for flexible working

There are big changes ahead for flexible working rights.

The Employment Relations (Flexible Working) Act 2023 has received Royal Assent and is due to come into law in mid-2024. It applies to England, Wales and Scotland.

The Act makes it easier for employees to request flexible working, while employers will have to respond to requests more quickly.

It makes amendments to the existing law, set out in the Employment Rights Act 1996. These include:

• Employees will be able to make two statutory requests in any 12-month period (currently only one request can be made in this time).
• The employer must deal with a request within two months of its receipt, unless an extension is agreed (currently three months).
• Employees will no longer have 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.
• Employers must consult with the employee before refusing a request (although the legislation does not specify a minimum standard for what that consultation needs to look like).

Right of appeal

The Act does not require the employer to offer a right of appeal if the flexible working request is rejected, although this would be best practice.

Reasons to refuse

The eight statutory reasons that an employer can rely upon to refuse a request also remain unchanged.

These are:

• extra costs that will damage the business
• the work cannot be reorganised among other staff
• people cannot be recruited to do the work
• flexible working will affect quality and performance
• the business will not be able to meet customer demand
• there’s a lack of work to do during the proposed working times
• the business is planning changes to the workforce.

Request from day one

The Government has indicated that the much-anticipated right to request flexible working from ‘day one’ rather than after 26 weeks service will be provided, although this is not included in the Act itself.