The Employment Relations (Flexible Working) Bill has received Royal Assent, becoming the Employment Relations (Flexible Working) Act 2023.
Below we look at how this new legislation will change the existing statutory flexible working regime.
Scope of new legislation
The Employment Relations (Flexible Working) Act 2023, which received Royal Assent on Thursday 20 July, will enable the following changes to be made to the current flexible working regime (reflecting the Government’s December 2022 response to its flexible working consultation):
- introduce a new requirement for employers to consult with the employee, as a means of exploring the available options, before rejecting a flexible working request;
- allow employees to make two statutory requests in any 12-month period (rather than the current one);
- require employers to reach a decision in respect of a statutory flexible working request within a two month period (rather than the current three months); and
- remove the existing requirement that the employee must explain what effect, if any, the requested change would have on the employer and how that effect might be dealt with.
The flagship aspect of the Government’s policy - to make the right to request flexible working a “day one right” (so that no minimum length of service is required before an employee can make a flexible working request) - will also be introduced via new regulations in due course.
Although this Act is now on the statute books, the new regime is not expected to take effect until 6 April 2024, with further details to be contained in forthcoming regulations (not yet published).
Updates to ACAS Code of Practice
In addition, the Advisory, Conciliatory and Arbitration Service (ACAS) is consulting on updates to its statutory Code of Practice on handling requests for flexible working (see its consultation on the new draft Code of Practice). Make UK will be involved in an ACAS-led working group looking at the Statutory Code of Practice over the summer. ACAS is aiming to publish its amended Code of Practice by April 2024 to align with the implementation date of the new flexible working rules. ACAS will also update its non-statutory guidance which sits alongside the Code.
“Happy to Talk Flexible Working” and call for evidence
The Government’s Flexible Working Task Force (to which Make UK is an active contributor) has also been exploring ways to encourage flexible working. The Working Families charity is relaunching its “Happy to Talk Flexible Working” (HTTFW) guidance and logo, which can be used as a strapline when advertising jobs of all levels and pay grades as flexible.
The Department for Business and Trade (DBT) is also planning a call for evidence seeking responses from individuals and employers on their experience of non-statutory flexible working, including how it has worked in practice.
How we can help
As mentioned above, Make UK has been engaging with Government on these issues and will be contributing to the ACAS consultation on the statutory Code of Practice.
As with all new legislative changes, Make UK will support its subscribers to understand the new provisions and we will keep our subscribers updated on developments. If you are a Make UK subscriber, you can speak to your regular adviser for guidance on the law and best practice when dealing with flexible working requests. We can also provide support with training line managers on how to manage flexible working requests, as well as updates to HR policies.
If you are not a Make UK subscriber, our expert HR and legal advisers can also offer guidance on a consultancy basis. For further information, click here.