Get ready and flex! The new flexible working legislation

As signalled in our legal update in December 2022, over the course of 2022, the Government undertook consultation on the law on flexible working and proposed some changes which it would introduce as part of its asserted commitment to encouraging flexible working.

The relevant legislation, The Employment Relations (Flexible Working) Act 2023 received royal ascent on 20 July 2023 and introduced the following significant changes:

1. employees are permitted to make 2 requests for flexible working within a 12 month period;
2. employers must respond to requests within 2 months;
3. employers must consult with their employees before turning down a flexible working request;
4. employees are no longer required to set out how their request might impact the business.

The reasons for an employer rejecting a request remain the same, as follows:

1. burden of additional cost;
2. detrimental affect on ability to meet customer demand;
3. inability to reorganise work among existing staff;
4. inability to recruit additional staff;
5. detrimental impact on quality of work;
6. detrimental impact on performance;
7. insufficiency of work during the periods the employee proposes to work;
8. planned structural changes.

It was anticipated that the Government would make the right to request flexible working a ‘day 1’ right (starting from the first day of employment) but it has not done so and therefore employees still need 26 weeks continuous service before the right to request flexible working arises. Likewise, there has been no introduction of a statutory right of appeal against a decision to reject a flexible working request.

ACAS however is currently consulting (until 6 September 2023) on a draft Code of Practice on the handling of flexible working requests which it has drafted. ACAS Codes of Practice are not legally binding but can be taken into account by an Employment Tribunal and the draft code does include a recommendation that employees be allowed to be accompanied by a work colleague or union representative and that employees are given a right of appeal against any refusal. The draft Code of Practice and Consultation Document can be found here.

Separately, a Private Members Bill known as The Workers (Predictable Terms and Conditions) Bill is currently passing through Parliament. The intention of the Bill is to give a worker and employees a right to apply for a change in their terms and conditions of employment to secure a more predictable working pattern if:-

1. there is a lack of predictability in relation to the work that they do for their employer or any other part of their working pattern;
2. the change relates to their hours, days, fixed term contract period etc;
3. they have been employed by the same employer at some time during the month immediately leading into a prescribed period which ends with the making of the application. The ‘prescribed period’ is expected to reflect a requirement for at least 26 weeks within the flexible working regime.

This has the potential to have a far reaching effect as on the face it, it would apply to casual workers, those on annualised hours, those with variable (and importantly, unpredictable) shift patterns and zero hours workers. We will keep you updated in respect of that legislation.

In the meantime, employers should review their flexible working policies and keep an eye out for the publication of the ACAS Code of Practice (we will keep you updated) and make any further adjustments to procedures to take into account any further changes that it would be prudent to make.

If you’d like to discuss how to prepare for these changes to the flexible working arrangements, please contact Linky Trott or any member of the Employment team.

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