On 20 July 2023, The Employment Relations (Flexible Working) Act 2023 (the Act) received Royal Assent. The Act makes changes to the current rights of employees to request a flexible working amendment to their contracts of employment.

In this insight, we summarise how flexible working requests will need to be dealt with once the Act comes into force (this date is yet to be announced) and what this means for employers.

Background

Flexible working arrangements can be agreed on a permanent or temporary basis and can cover working hours, agile-working and/or job-shares. The first statutory right to request flexible working was introduced for working parents in 2003 and that right was extended to all employees with 26 weeks’ continuous service in 2014. In September 2021, the government published a consultation on proposals to encourage a better dialogue about flexible working opportunities, to increase the frequency of requests and to speed up the administrative process. In December 2022, the government published its response to the consultation and committed to making changes to the statutory right to request flexible working.

The Act gives effect to several of these changes.

What has changed?

The Act makes the following changes to the right to request flexible working request rules contained in the Employment Rights Act 1996:

• Employers must consult with the employee before rejecting their flexible working request.
  
  However, the Act does not set out or define the type and level of consultation required. The detail on consultation is set out in the draft Acas Code of Practice (link below) at paragraphs 12-16 and the Foreword notes that “consultation meetings about requests should be approached with an open mind to discuss what may be suitable. Meetings are an opportunity to listen carefully and engage meaningfully with each other so that a fully informed, evidence-based decision can be made.”

• Employees can make two flexible working requests in any 12-month period, increased from the current limit of one, as long as they are not made concurrently.
• Employers must make a decision within two months of the request, reduced from the current time limit of three months.
• Employees are no longer required to set out a ‘business case’ in support of their request to explain what effect the change would have on the employer and how that might be dealt with.

What hasn’t changed?

It is important to note that the statutory right to request flexible working (not a right to work flexibly) remains.

Although it is being reported by the media that the Act makes flexible working a ‘day one’ employment right, this is not in fact the case. The right still only applies to employees with 26 weeks’ continuous service. It has not been extended to workers. It is understood that the government has indicated that it intends to change the 26 weeks’ continuous service requirement for employees, but, as yet, no legislation has been published to bring this into effect.

Employees still do not have the legal right to appeal their employer’s decision. The current 2014 Acas Code of Practice on handling flexible working requests (and the new draft Code – link below) recommends that it is good practice for employers to consider any appeal lodged, but the Act does not oblige them to do so.

A flexible working request can be lawfully refused by the employer on one (or more) of the statutory grounds:

• the burden of additional costs
• an inability to reorganise work amongst existing staff
• an inability to recruit additional staff
• a detrimental impact on quality
• a detrimental impact on performance
• a detrimental effect on ability to meet customer demand
• insufficient work available for the periods the employee proposes to work
• a planned structural change to the employer's business.

Employees have no way to challenge a refusal that is based on one of these grounds under the right to request flexible working scheme. One option available is a claim under the Equality Act 2010, but such claims are only available to those with a protected characteristic.

What next for flexible working?

It has been reported that the government intends to make the right to request flexible working as a ‘day one’ right in 2024. Draft legislation is now awaited.

On 12 July 2023, Acas launched a consultation (that closes on 6 September 2023) on a new draft Code of Practice on handling requests for flexible working. This was launched in anticipation of the reforms in the Act, the significant shift towards flexible working in the workplace and changing views since the existing Code was published in 2014. The Code is more detailed than the current version and states that “employers must accept requests unless there is a genuine business reason not to… The default position should not be to reject requests.”

The Department of Trade and Industry (DTI) launched a call for evidence: non-statutory flexible working on 20 July 2023 (that closes on 7 November 2023). The DTI is seeking views from individuals and businesses on their experiences of non-statutory flexible working, including how it operates in practice. Responses received will help to develop the government’s evidence base on non-statutory flexible working and inform its flexible working strategy moving forwards. 

What to take away

There has been a cultural shift since the COVID-19 pandemic, with many employers embracing a ‘flexibility by default’ culture that goes way beyond the statutory minimum and greatly benefits both the organisation and their workforce. In the NHS, for example, staff on Agenda for Change terms have had a contractual day one right to work flexibly since September 2022.

However, the British Chambers of Commerce pointed out in its press release that there are significant disparities in who can work flexibly and the sectors which have been responsive to flexible working so far. 

There is clearly a lot of work still to be done by employers to challenge long held assumptions and accept that as many people as possible are able to (to quote the House of Lords) “agree work arrangements that fit with life” that will allow them to remain in work. With that in mind, the Act serves as a good ‘baseline’ for employers to work from. 

How Capsticks can help

Capsticks has significant experience in supporting employers to implement flexible working in the context of workforce planning, recruitment, retention, efficiency plans and maximising workforce flexibilities. 

If you would like access to advice, training or need further guidance on flexible working (either generally or in relation to a specific case) please contact Anna Semprini, Raj Chahal or Saira Ramadan.