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In this article we review the new legislation of the Employment Relations Act 2023 and the recent consultation on handling flexible working requests.

The Employment Relations (Flexible Working) Act 2023 received Royal Assent on 20 July 2023 and introduces some significant changes to the current flexible working regime. These changes are likely to take effect in the Summer of 2024.

The new legislation will:

  • Allow employees to make two flexible working requests in any 12 month period;
  • Requires employers to respond to requests within 2 months rather than 3 months.
  • Employees no longer have to set out the impact that this request will have on the role; and
  • Employers will have to consult with employee before rejecting the request.

Surprisingly, it had been envisaged that the right to request flexible working would be a day 1 right. However, the Act is silent on this. It is anticipated that the current requirement to have 26 weeks continuous employment will be removed separately, by way of secondary legislation (although no such legislation has been published yet). Further, the Act does not provide for a legal right of an appeal against a decision to refuse flexible working. However, the new draft ACAS Code of Practice which accompanies the legislation recommends that it is good practice for employers to consider any appeal lodged by an employee.

Acas has also recently commenced consultation on an updated statutory Code of Practice (the Code) on handling flexible working requests, anticipating changes which will be implemented when the Act receives Royal Assent.

The Code states that employers should keep an open mind when dealing with requests and that the default position should not be to reject requests. It covers principles of good practice that are expanded upon in the Code itself: ensuring transparency in the decision-making process, being proactive in offering an appeal if a request is rejected and allowing employees to be accompanied at meetings.

The Code sets out the business reasons for rejecting a request namely:

  • extra costs that will damage the business;
  • the work cannot be reorganised among other staff;
  • people cannot be recruited to do the work;
  • flexible working will affect quality and performance;
  • the business will not be able to meet customer demand;
  • there’s a lack of work to do during the proposed working times; and
  • the business is planning changes to the workforce.

The Code also it states that employers must not reject a request without first consulting the employee, the consultation should involve a formal meeting which should be held without unreasonable delay and the person holding the meeting should have sufficient authority to make a decision.

It further states that the employer and employee should discuss alternatives to flexible working options that may be available and suitable for the business and the employee.

It is important to start updating policies to reflect the changes and ensure that managers dealing with flexible working requests and who have the authority to make decisions are trained in dealing with such requests.

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