Changes to the right to request flexible working — what employers need to know

The Employment Relations (Flexible Working) Act (Flexible Working Act) has received Royal Assent and will impact an employee’s right to request flexible working.

Here, Susan McKenzie and Amy Weir from our employment team outline what employers and employees need to know about this key piece of legislation.

The current statutory scheme for flexible working

At present:

• Employees must have at least 26 weeks’ continuous service to have the statutory right to request a change to their working hours, times or location.
• An employee may make only one request in any 12 month period.
• The request must be dealt with by the employer in a reasonable manner.
• The employer has a period of three months to consider the request, discuss it with the employee (where appropriate) and notify the employee of the outcome (including any appeal outcome).

What will change under the Flexible Working Act?

The Flexible Working Act sets out the following new measures:

• Employees will be  allowed to make two flexible working requests in any 12-month period (a second request cannot be made until the first request has been dealt with).
• Employers will be required to respond to requests within two months (previously three months).
• Employers will be required to consult with their employees and explore the available options before rejecting a flexible working request.
• There will no longer be a requirement for employees to set out how the effects of their flexible working request might be dealt with by their employer.

All other elements of the statutory right to request flexible working will remain the same.

Will there be a day one right to request flexible working?

The Flexible Working Act itself does not mention a day one right to request flexible working.

However, the Government consulted on making flexible working the default in September 2021 and backed the Flexible Working Act in its response in December 2022. It confirmed that a day one right for employees to request flexible working would be introduced via secondary legislation ‘when Parliamentary time allows’. This would mean that the current 26 week qualifying period would be removed.

In a press release Kevin Hollinrake, Minister for Enterprise, Markets and Small Business confirmed that “workers will have the right to request flexible working from day one of a new job” and that “employers [are] required to consider any requests and provide a reason before rejection.”

The new draft ACAS Code of Practice on handling requests for flexible working is also written on the basis that flexible working will be a day one right.

In short, it seems that there is a commitment from the Government that there will be a day one right to flexible working which will be contained in future regulations — separate to the Flexible Working Act.

When will the changes come into effect?

The Government’s press release says that they ‘expect’ the measures in the Flexible Working Act and secondary legislation to come into force approximately a year after Royal Assent, to give employers time to prepare for the changes. This means that the changes will likely come into force around July 2024.

With this in mind, the Flexible Working Act states that the changes will ‘come into force on such day as the Secretary of State may by regulations made by statutory instrument appoint; and different days may be appointed for different purposes.’ As at the time of writing, those regulations have not been put before Parliament, so it is a case of watching and waiting.

The ACAS draft Code of Practice on handling requests to work flexibly

ACAS consulted on their draft Code of Practice on handling requests for flexible working (the new Code), which they are updating to take into account the changes under the Flexible Working Act and the ‘significant shift in flexible working in the workplace and changing views since [their] existing Code was published in 2014.’

The new Code aims to promote a ‘more positive approach to flexible working’ and encourages ‘open-minded consideration and meaningful dialogue’ when requests are being considered. In addition, the new Code builds on good practice by:

• widening the choice of people who may accompany an employee at a meeting to consider a flexible working request,
• guiding employers to provide a reasonable level of information to help explain their decision,
• recommending employers provide an appeal when a flexible working request is refused. 

Non-statutory flexible working

The Department for Business and Trade has launched a call for evidence on non-statutory flexible working arrangements. The focus is on informal flexible working (i.e., where the flexible arrangement has been introduced outside of the formal statutory procedure). The call for evidence is broken down into three sections that focus respectively on ‘ad hoc’ arrangements, ‘regular’ arrangements and organisational approaches to non-statutory flexible working.

The call for evidence closes on 7 November 2023

How we can help

Our employment team can help employers and employees to understand the impact of the regulations and what they should do to prepare. Many employers will already have arrangements in place that go beyond these minimum requirements however we recommend that all employers review and update their flexible working policies to ensure that they are fully compliant with the new regulations.

We will provide further updates in due course — to make sure that you receive these, please follow us on LinkedIn and Twitter.

If you need legal support to prepare for these changes, talk to us.