An update to flexible working has been on the horizon for a while. It seems now that progress is finally being made towards introducing new legislation dealing with flexible working – the Employment Relations (Flexible Working) Act 2023 has now completed its passage through Parliament and is awaiting Royal Assent.
The legislation introduces several changes to the current flexible working regime, however, importantly some aspects will remain the same.
The changes are as follows:-
- Employees will now be able to make two flexible working requests in any 12-month period;
- Requests must be dealt with by employers within 2 months of receiving the request if no extension is agreed;
- Employers are not able to refuse a request until they have ‘consulted’ with the employee (however there is no minimum consultation requirement written into the legislation);
- Employees will no longer need to explain within their application what effect the employee thinks agreeing to the request would have and how any such effect might be dealt with.
The legislation doesn’t:-
- Make flexible working a ‘Day 1 right’. Employees still need to have 26 weeks’ service before they are able to make a request;
- Require employers to offer the right to appeal if a flexible working request is rejected. The offer of a right to appeal is, however, recommended in the ACAS Code of Practice on Flexible Working. These changes have not made it a requirement of the process;
- There is no minimum standard of consultation set out at all.
ACAS has issued a consultation on an updated statutory Code of Practice on handling flexible working requests. The foreword to the Code sets out the benefits of flexible working requests and the advantages of consulting with employees about their flexible working requests. It emphasises that the default position should not be to reject flexible working requests and that employers should keep an open mind.
Principles of good practice that are expanded upon in the Code itself: this includes ensuring transparency in the decision-making process, allowing employees to be accompanied at meetings and proactively offering appeals if a request is rejected.
If you need any assistance or advice regarding a flexible working request, please do not hesitate to contact a member of the Employment team at firstname.lastname@example.org.
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