The Employment Relations (Flexible Working) Act 2023

The Employment Relations (Flexible Working) Act 2023 completed its passage through Parliament and received Royal Assent on 21 July 2023.  On Monday 11 December 2023 the Flexible Working bill became law.  The new legislation comes into effect on 6 April 2024.

So what does this mean for our organisation?

The standout changes for your policies and procedures are:

• The right to request flexible working is now a day one right.
• Previously employees could only make one request in a 12-month period. This has now been extended to a maximum of two requests in a 12-month period.
• Previously requests had to be dealt with, within 3 months. This has been reduced to two months.  However, the ability to extend this via mutual agreement remains.
• Employers must now consult with employees prior to refusing a request. However, there is no guidance as to what meaningful consultation includes.  Best practice would be to always consult and document any decisions.
• Employees previously had to state what effect the request would have on the organisation and how such an effect may be dealt with. This is no longer a requirement.

Do employees have the right to appeal if their application is rejected?

This is not a legal right, but Acas do recommend the right of appeal in the Acas Code of Practice on flexible working requests.

When will the new Acas code be available?

The draft code of practice, published 11 January 2024, is now available online.  However, the current code of practice applies until approved.  It is expected that the draft code will come into effect on 6 April 2024, in line with the new legislation.

Will the 8 business reasons for rejecting a request still apply?

Yes.  These are unchanged, and are as set out below:

1. The burden of additional costs
2. An inability to reorganise work amongst existing staff
3. An inability to recruit additional staff
4. A detrimental impact on quality
5. A detrimental impact on performance
6. A detrimental effect on ability to meet customer demand
7. Insufficient work for the periods the employee proposes to work
8. Planned structural changes to the business

If I refuse a request, do I need to document this?

Yes.  You should write to your employee, setting out one of the 8 business reasons for rejection.  The Acas code, if approved, will place a greater onus on employers to explain the rationale behind the reason for rejection.  You should therefore be prepared to justify your decisions.

If I say ‘yes’ to one request, will I be automatically obliged to offer this out to everyone?

No.  This is based on a set of circumstances at that time in question and whether the business can accommodate that change at that particular time.

What happens if I have competing requests for flexible working?

You may need to negotiate with employees to find a ‘practical solution’ for all parties.  You can, as a reasonable employer, put forward alternatives and offer a trial period.

Does a flexible working request agreement represent a permanent contractual change?

Yes.  Once a flexible working request has been agreed, this is a permanent change to the contract and there is no right in law to revert back to the previous terms and conditions.  This should be documented in writing.