The Employment Relations (Flexible Working) Act 2023 came into force on 6 April 2024 in England, Wales and Scotland. You can read our previous blog post, which covers upcoming changes and what organisations can be doing to prepare.

The Act brings some significant changes to the rules around flexible working, though perhaps not as significant as we might expect a change in government to bring in the near future.

What has changed?

• Employees no longer require 26 weeks’ continuous service to request flexible working; this is crucially now a day one right.
• Employees are no longer required to outline the effects they think such a request will have on the organisation and how this can be mitigated.  
• Employers now only have two months to make a decision about the request, previously it was three. They are also required to consult with the employee before rejecting any request.
• An employee can now make two written requests in any twelve-month period; previously it was one.

ACAS has also issued a new Code of Practice on requests for flexible working which must be followed by employers when they receive a request for flexible working in line with the legislation. Failure to do so will be taken into account by Employment Tribunals in relevant cases.

The code sets out numerous criteria but is clear that employers must ‘handle every request in a reasonable manner’ and ‘agree to a flexible working request unless there is a genuine business reason not to’ (the reasons being those set out in the Employment Rights Act 1996; which remain unchanged – see below).

What hasn’t changed?

There is still only a statutory right for employees to make a flexible working request, not to be entitled to receive flexible working, necessarily.

The business reasons that an employer can rely on for rejecting a flexible working request as set out in the Employment Rights Act 1996 remain unchanged:

• 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 the ability to meet customer demand;
• insufficient work available for the periods the employee proposes to work; and
• planned structural changes to the employer's business.

What do employers need to do?

If they haven’t already, they need to ensure their flexible working policies are updated to reflect these changes.

Are further changes expected in the near future?

If there is to be a change in government later this year, as tentatively expected at the time of writing, then yes. The Labour Party has published a Green Paper entitled ‘New Deal for Working People’ and is committed to enacting this within the first 100 days of a labour government.

Within it, is a commitment to make it a day one right to receive flexible working and not just request it. They have said employers will be required to accommodate this ‘as far as reasonable’. As always, the devil will be in the details as to how this could work in practice and we await further details before we can comment on the practicability of such a significant employment law policy change.

You may also wish to sign up for our health and social care webinar on Tuesday 23 April 2024 which will be using workplace scenarios to address various challenges and providing practical advice and suggestions on building workplaces where workers feel valued and supported. As part of the webinar, we will be looking at how to process flexible working requests under the new regime. 

We will continue to keep you updated. Please don’t hesitate to contact me if you have any queries on individual circumstances, or if you require a flexible working policy review.