Publish date

26 July 2023

What changes is the Employment Relations (Flexible Working) Act 2023 bringing in?

What changes is the Employment Relations (Flexible Working) Act 2023 bringing in?

The new Employment Relations (Flexible Working) Act 2023 will allow millions of British workers to have more flexibility over their work, including the hours they choose to work and the location in which this is undertaken. The need for more flexible working is obvious from recent research carried out by the Chartered Institute of Personnel and Development (CIPD), which is set out in a corresponding report of April 2022. This highlights that 4% of employees changed jobs in the year preceding the report specifically due to a lack of flexible options, and that 9% left their profession/careers almost altogether due to a lack of flexibility.

The Act will make changes to both when and how employees can request flexible working arrangements from their employers, delivering on a 2019 commitment by the Government to encourage flexible working and with the aim of improving the CIPD statistics. The Act is also a reflection of the post-covid work environment, in which employers have become increasingly used to dealing with flexible working requests. In the last week, the Act has received Royal Assent and is now set to become law. When this happens, its changes will take effect.

What are the new rules for flexible working requests?

At present, flexible working is governed under the Employment Rights Act 1996, which states that any employee who has worked at a company for 26 weeks or longer is permitted to ask their manager for flexible working once per year. The employee requesting the change must also explain what effect, if any, they think that the change they have requested would have on their employer. It was widely anticipated that the new Act would allow employees to request flexible working from day 1 of their employment, but this was not specifically addressed within the Act in bill form. However, amongst numerous other changes, there is no longer a requirement for the employee to lay out how a flexible working request might impact upon their employer.

Other changes to flexible working under the Employment Relations (Flexible Working) Act 2023 are as follows:

  • Employers must consult with their employees before a flexible working request can be turned down – this encourages further consideration by the employer of each request, although there is no requirement for a substantive consultation within the Act
  • Employees will be allowed to make two flexible working requests in any 12 month period (currently, an employee is only able to make one flexible working request within a 12 month period)
  • Employers will be required to respond to requests within two months (this was previously three).

How will the Employment Relations (Flexible Working) Act benefit employees and employers?

Whilst the Act is seen to be positive news for employees, employers should also consider this a welcome change. Facilitating flexibility within a workforce will likely lead to improved staff retention and recruitment. It is clear from the CIPD Research in April 2022 that flexibility is one of the most important factors for employees.  In addition, greater flexibility will allow for better work life balance, and in turn, improved health and wellbeing amongst employees.

The purpose of the Act is to encourage greater flexibility within the workforce, however, it is clear that the new legislation does not mean that employers cannot refuse a flexible working request, or that business owners should feel compelled to approve every request that they receive. Some employers are simply not able to facilitate flexible working. For this reason, the Act does not amend any of the eight existing statutory grounds under which an employer can refuse a flexible working request. These include the burden of additional costs, a detrimental impact on quality and planned structural changes. An employer who is legitimately unable to facilitate a flexible working request is still very much within their rights to refuse it on one of these grounds.

Whilst there is no immediate action required, employers should make sure they are aware of the new legislation, and consider how they will navigate these changes when the Act comes into force shortly. In recognition of the change, the Government has advised that the Act will be supported by a statutory Code of Practice, which is currently being developed by Acas and is under consultation until 6 September 2023. This will provide advice and guidance to both employers and employees on rights, rules and best practice.

If you would like advice on the upcoming changes, please contact one of our lawyers in the Employment team here.

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