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Flexible Working Act 2023 | A fundamental shift or a fuss over nothing?
When the government announced proposals to reform flexible working back in 2021, many envisioned a transformative shift in their work-life balance.
Fast forward two years, and the Employment Relations (Flexible Working) Bill has now received Royal Assent. But is it the sea change many expected?
In this blog, we recap the background to the Employment Relations (Flexible Working) Act 2023, explain what is and isn’t changing under this new legislation, and discuss why, ultimately, it might not make much difference to how requests are dealt with in practice.
The background
In July 2019, the government launched a consultation which looked at, amongst other things, the transparency of flexible working. That same year, the Conservative Party manifesto, which was published in advance of the 2019 general election, stated that the party encouraged flexible working and would consult on making it the default position, unless the employer had good reason not to allow it.
The government reiterated these intentions throughout the pandemic, as the evolving circumstances reinforced the relevance of flexible working arrangements and sparked new interest in flexible working reform.
The response to the consultation was published in December 2022. In it, the government confirmed its intention to introduce changes to flexible working legislation. These changes were wrapped up in the Employment Relations (Flexible Working) Bill, which made its way through Parliament and received Royal Assent on 20 July 2023.
There is currently no date for implementation of these changes but employers should be aware that they are likely to come into force within the next 12 months.
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4 key changes to flexible working rules
The Employment Relations (Flexible Working) Act 2023 introduces a series of changes that affect both employees’ rights and employers’ obligations in relation to flexible working.
These changes aim to enhance the flexibility and accessibility of work arrangements and make it easier for employees to request flexible working options, while imposing corresponding responsibilities on employers to consider and accommodate such requests in a fair and reasonable manner.
Under the Act, employees will:
- Be able to make two requests in any 12-month period, rather than one.
- No longer be required to explain what effect, if any, the change they are requesting would have on the employer and how this might be dealt with.
Additionally, employers will:
- Be required to deal with a request within two months, rather than three.
- Be required to consult with the employee before rejecting their request.
A storm in a teacup?
Given the overwhelming amount of media attention the Act has received, it’s understandable that employers may be concerned about receiving an influx of requests and how this might impact their operations. Indeed, even the government has presented the new legislation as a massive overhaul, claiming that “millions will benefit from new flexible working measures”.
However, while the headlines seem to suggest that employers will soon be forced to accommodate demands for flexible working, in reality, the Act is unlikely to make any real difference to how requests are handled.
Fundamentally, the creation of a day one right to request flexible working – which will be most employers’ primary concern – is not included within the Act, despite the government’s press release indicating otherwise.
This change (to give employees the right to request flexible working from day one of employment, instead of having to wait until they have completed 26 weeks of service) is still planned, and the government has said it will bring forward secondary legislation in this regard, but it could be some time before that happens.
What hasn't changed: legal grounds for refusal
Another reason why the Act might not be the monumental change it seems is that, from a purely legal perspective, employers will still have the same powers to deny requests as they did before. There are eight specified reasons to refuse a request, and these remain unchanged.
Additionally, if an employee is dissatisfied with an employer’s decision, recourse to challenge it under flexible working legislation remains limited. They may be able to take their employer to a Tribunal for issues such as not dealing with a request in time, turning it down for reasons outside of the eight prescribed in the legislation, or not dealing with the application in a reasonable manner; however, if the employer has done all of that and the employee is simply not happy with the outcome, there is little they can do except follow the company’s procedures for appealing.
Moreover, if a dispute over flexible working did make its way to Tribunal and the employee’s claim was to succeed, the maximum penalty is only eight weeks’ pay, unless the employee has raised other claims – for example, indirect sex discrimination or constructive dismissal. As such, the financial risk to employers for claims purely around the flexible working procedure is relatively low.
Getting prepared
Of the changes to the flexible working scheme that are being brought about by the Act, the two which are likely to impact employers the most are the reduction in the timeframe for dealing with a request, and the right for employees to make two flexible working requests in any 12-month period, rather than one.
Whilst we await a formal introduction date – likely sometime in 2024 as the Act will require an accompanying Code of Practice which Acas are consulting on – employers may wish to ready themselves for these changes by preparing an updated Flexible Working Policy which can be released from the date they come into effect.
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