The royal assent stamp will need some new ink given the amount of time it's been out of the box recently! The Employment Relations (Flexible Working) Act 2023 (the Act) was stamped last week, hot on the heels of legislation introducing new rights for parents and carers (see our blog here).

Headline point

Various aspects of the statutory right to request flexible working (s80F the Employment Rights Act 1996) are to be changed. Cynics would see it as a 'tweaking' rather than a change whereas the Government is heralding it as a change affecting millions.     

Digging deeper

The changes/tweaks, call them what you will, are as follows (note that they are outlined in more detail in our blog here).

• day one right to request flexible working - previously the right to request only applied to employees with 26 weeks' continuous service
• two flexible working requests can be made within a 12-month period - previously only one was allowed
• employers must respond within two months to a request - previously it was three months
• the employee must be consulted if an application is refused
• employee no longer has to explain the effect their proposed flexible working would have on their employer

Seismic change or inconsequential tweaks?

There is no doubt that in extending this right to employees from day one, it will affect many more employees and may impact your recruitment process. We would always advise that employers engage in conversations about flexible working patterns with successful candidates who are looking for flexible working arrangements. Once this Act is in force, it will be a legal obligation rather than good practice. On a techy point, it's worth noting that this change to eligibility is not contained in the Act but rather will be included in subsequent regulations. We don't expect any delay to those regulations but would see them as being introduced in time for the commencement date of the Act.   

What has not changed and hence has triggered criticism of the Act are the eight business reasons for refusing a request (see details in our blog). Critics call them too wide and mean employers can easily refuse any number of requests. The Government defends them saying any further and lengthier reasons would bring a lack of clarity which would not help applications. I fear my cup remains half empty on this; employees may be able to make more requests and can do that from day one but if employers can still fall back on the same broad reasons as before, will there really be any change? I hope I am proved wrong on this for the sake of employees whose lives would look radically easier if they were permitted some level of flexibility in their working practices.

What needs to be done?

• employers will need to start thinking about necessary changes to their policy and procedure around flexible working requests - we have no date as yet but expect the changes to take effect in 2024
• there is no reason why you can't introduce the changes earlier or indeed introduce more generous changes if you wish to - some employers are using the imposed change as a reason to take a strategic view of their attitude to flexible working and assess whether previous systems and policies are appropriate for the mid 2020s and beyond
• there has been much press coverage on the change - you may want to communicate with your staff confirming what the changes are, when they will be introduced and the impact they will have. Press coverage suggests an immediacy to the change and so it's good to give a more realistic timeline so employees aren't disappointed when their applications aren't processed in accordance with the publicised changes

Please do contact any of our team if you would like further clarification or information on these changes.