The Employment Relations (Flexible Working) Act 2023 (the Act) received Royal Assent on 20 July 2023 and is expected to come into force approximately one year after that, to give employers time to prepare. The Government states that the changes will help firms recruit staff, increase retention and improve workforce diversity; the Equality and Human Rights Commission believe that the new legislation will "pave the way for a more inclusive and productive workforce".

In summary, the main changes under the Act are:

  • Employees will have the right to make two statutory requests in any 12 month period
  • An employee will no longer have to explain what effect the change would have on the employer and how that might be dealt with
  • An employer will have two months to make a decision
  • An employer will have to consult with the employee before rejecting a request.

Alongside these changes, employees will also be given the right to request flexible working from day one of a new job – they currently need 26 weeks' service. This is not included in the Act and will be introduced via separate Regulations, which have not been published yet. The Government intends this change to come into force at the same time as the provisions under the Act.

Acas Code of Practice and guidance

Acas are currently consulting on a draft updated statutory Code of Practice on dealing with flexible working requests, which can be taken into account by employment tribunals in relevant cases. The consultation closes on 6 September and can be accessed here: Acas consultation on the draft Code of Practice on handling requests for flexible working | Acas. The updated Code goes further than the provisions in the Act by extending the categories of those who can accompany employees to meetings to discuss requests.  It also provides that if an employer rejects a request, they should set out the business reason and additional reasonable information to help explain their decision, and they should offer an appeal if they reject a request. Acas are also updating their non-statutory guidance.

Key changes introduced by the Act

  1. Employees will have the right to make two statutory requests in any 12 month period

At the moment, employees can only make one statutory request per year. As from next summer, they will have the right to make two requests in any 12 month period. They will not be able to make a further application while the first application is proceeding.

  1. An employee will no longer have to explain what effect the change would have on the employer and how that might be dealt with

This will reduce the burden on employees and make it easier for them to make a statutory flexible working request.

Employers are likely to receive more requests than previously as a result of these two changes; the abolition of the 26 week qualifying service period to make a request is also likely to increase the number of requests.

  1. An employer will have two months to make a decision

Employers currently have three months in which to decide whether to accept or reject the request but this period is reducing to two months. They will need to ensure that they diarise the new time limit, although it can be extended by agreement with the employee.

  1. An employer will have to consult with the employee before rejecting a request

An employer cannot refuse a request unless the employee has been consulted about the application. It is not clear at the moment what is meant by this requirement and we hope that the Acas Code and updated guidance will help.  At a minimum, employers will probably have to consider the request and discuss it with the employee before making a decision.

It is worth pointing out that the fundamental principles relating to flexible working are not changing, such as the fact that flexible working is still a change to working hours, location or pattern, an employer will need to have one or more of eight business reasons for rejecting a request, they will need to consider a request in a reasonable manner, and an employee will be able to bring an employment tribunal claim if they believe their employer has not complied with the legislation.

How can employers prepare for the changes?

  1. Review your existing policies

Review your current policies and procedures. Decide where changes need to be made and update your documents, taking account of the Acas Code of Practice and guidance when they are finalised.

  1. Develop clear guidelines on flexible work arrangements

Develop and implement clear guidelines that outline the process for submitting, evaluating, and implementing requests for flexible work arrangements. Communicate these guidelines to your staff to set expectations and ensure a seamless transition when the Act comes into force.

  1. Invest in technology and infrastructure

With remote work gaining prominence, investing in technology tools and infrastructure to support efficient communication and collaboration among employees should be a top priority regardless of their geographic location or working schedule.

  1. Train your managers

The success of the new legislation will depend on how well managers adapt to these changes. Provide training for managers on the importance of flexible work arrangements, how to effectively evaluate requests, and manage teams with diverse schedules.

  1. Open channels of communication

Regularly solicit feedback from employees about their experiences with flexible work arrangements, the potential challenges they face, and any suggestions they might have to improve the experience for everyone.

The likely impact of the changes

Flexible working options significantly improve employment opportunities for a diverse range of individuals. These arrangements are especially beneficial to those who have caregiving responsibilities for the elderly or young. New mothers can immediately access flexible work schedules, while fathers can also pursue adaptable work arrangements.

This development should contribute to narrowing the gender pay gap and allow parents to more effectively balance childcare responsibilities. Additionally, it should enable employees to better care for aging family members.

The revised legislation provides increased adaptability for disabled workers as a reasonable adjustment, facilitating their entry into and retention in the workforce. This measure could help to decrease the pay disparity between disabled and non-disabled employees.

Both employees and employers derive benefits from flexible work arrangements. Employees experience heightened job satisfaction, enhanced workplace relationships, and increased trust in their employers. On the other hand, employers who offer such arrangements attract and retain a broader range of job applicants, fostering a diverse and dynamic workforce and improving workforce morale.

The Act is unlikely to dramatically change how employers handle flexible working requests. By proactively adapting your policies and processes in preparation for this legislation, you can embrace the changes.

Our employment law experts are experienced in drafting and reviewing HR policies and procedures. If you have any questions about how the new provisions affect you or if you would like some help with updating your flexible working policy, please get in touch with your usual WBD contact or Emily Cox.

Supporting disability

20% of working age adults in the UK have a disability (8.4 million people), with many of these disabilities being non-visible. Supporting staff with disabilities is of vital importance to WBD. WBD launched our Disability Network during National Inclusion Week 2021, to support everyone at WBD affected by disability or long term health conditions. You can find out how we have been raising disability awareness and making positive contributions towards fostering a working environment based on mutual respect, inclusiveness and equal opportunities in our Responsible Business Report.

Look out for WBD's latest Responsible Business Report, which will be released in September. In the meantime, you can learn more about Responsible Business at WBD and read the latest report here.

This article is for general information only and reflects the position at the date of publication. It does not constitute legal advice.