Employment Relations (Flexible Working) Bill to become law

Posted: 26/07/2023

There has been a change in attitude towards flexible working, and flexibility within a job (especially following the Covid-19 pandemic) is now a priority for many UK workers. Consequently, in September 2021, the government published a consultation on flexible working that ran for 12 weeks. The response to the consultation, published at the end of 2022, indicated that there would be a number of changes to the existing statutory regime. 

On 14 July 2023 the Employment Relations (Flexible Working) Bill received its final reading in Parliament, and on 20 July 2023 it received royal assent. This means that the bill will now become law and may make it easier for employees to be granted flexible working opportunities. It should be remembered that currently, the right is to make a request for flexible working, not to be granted flexible working, and there are no proposals for flexible working to become the default, despite calls from some focus groups.

What will be changing?

• Employees will be able to make two flexible working requests in any 12-month period - employees are currently only able to make one request in any 12-month period.
• Employers will be required to deal with requests within two months, unless an extension is agreed.
• Employees will not have to explain within their application the effect that acceptance of their request might have on the business, or how such effect could be minimised.
• Employers will be required to consult with employees before they are able to refuse a request. However, there is no clarification on what constitutes sufficient consultation.

What will not be changing?

A flexible working request will not become a ‘day one’ right, meaning that employees will still be required to have 26 weeks' service before they are eligible to make a request. Instead, the government has suggested that secondary legislation will be enacted to create ‘day one’ employment rights, but this promise is yet to be honoured. 

Employers are not required to offer a right of appeal to employees whose request has been rejected, despite this being recommended in the current Acas Code of Practice on flexible working.

When can a flexible working request be rejected?

Employers are still able to reject flexible working requests for a number of business reasons, for example: 

• flexible working will affect performance and quality of work;
• the work cannot be reorganised among other staff;
• extra costs that will damage the business;
• people cannot be recruited to do the work;
• it will negatively impact the ability to meet customer demand;
• there is a lack of work to do during the time the employee has requested to work; or
• the business is planning changes to the workforce and the request will not fit with these plans.

What to look out for in future

Acas has launched a consultation regarding updating its code of practice for dealing with flexible working requests, which seeks to encourage a more positive approach to flexible working. The consultation will run over an eight-week period from 12 July 2023 to 6 September 2023, and it is expected that the new code will reflect the significant changes in ways of working since the current code was published back in 2014. The non-statutory guidance that sits alongside the code will also be updated. These developments will be awaited with interest by employers and employees alike. 

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