Flexible Working Requests – changes to legislation
Currently, employees with 26 weeks’ service can make a statutory flexible working request to change their hours, times or place of work. Only one request can be made in any 12-month period. The employer must consider the request in a reasonable manner and notify the employee of their decision within 3 months (or longer if that is agreed with the employee). If the request is agreed, this will result in a change to the employee’s terms and conditions of employment.
The Government had announced proposals to change these provisions, including that the right to apply for flexible working would be a day one right. It announced support for the Employment Relations (Flexible Working) Bill, a Private Member’s Bill, which would bring some of the proposed changes into effect if passed.
The Employment Relations (Flexible Working) Bill has now received Royal Assent.
Flexible working requests – what is changing
When the Employment Relations (Flexible Working) Act 2023 comes into force, it will introduce the following key changes to the flexible working request process:
- Employees will be able to make two applications for flexible working within a 12-month period, rather than one
- The employee will no longer have state what they think the impact of their request would have and how this might be dealt with by their employer
- An application cannot be refused unless the employee has been consulted about the application. There is no guidance or provision in the Act, however, setting out what that consultation will involve.
- The decision period has been reduced from three months to two, unless it is agreed that this will be extended
Flexible working requests – what is not changing
There is no mention in the Act of making the right to request flexible working a day one right. Employees will therefore still need 26 weeks continuous service to make a request. As this was a key proposal of the Government, it is possible that this will be introduced at a later stage in secondary legislation.
Applications for flexible working can still be refused. There is no change to the eight permitted grounds for refusal of a flexible working request. The Act does not impose an obligation on employers to offer a right of appeal against a refusal of a request for flexible working.
Draft Statutory Code of Practice
ACAS has published a draft updated statutory Code of Practice on managing flexible working requests for consultation, in anticipation of the changes. The foreword to the consultation states that the aim of the Code is to ‘provide employers, employees and representatives with a clear explanation of the law on the statutory right to request flexible working, alongside good practice advice on handling requests in a reasonable manner’. Consultation on the draft Code will end on 6 September 2023.
It is important to remember that the right of an employee is still a right to ask for flexible working, and to have that request considered. There is still no right for an employer to have flexible working. However, it remains the case that a refusal of a request for flexible working can, in some circumstances, give rise to an allegation of indirect discrimination.
24 July 2023
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