Changes to the flexible working regime

Flexible working continues to occupy headlines in the UK and is a key feature of the modern professional landscape. Fuelled by technological advances, the pandemic and shifting societal norms, the desire for flexible working is rising and we are seeing this in the increased number of flexible working requests our clients are receiving under the existing statutory scheme.

“Flexible working” encompasses not only working from home or remotely, but any changes to working practices such as job sharing, part time working, compressed or flexible hours and working from abroad.

In light of changing practices, the Government consulted, in 2021, on proposed changes to the law governing flexible working to make it more accessible for employees. As a result, and as part of its commitment to reform, the Government backed a Private Members’ Bill sponsored by the Labour MP, Yasmin Quereshi and the Bill received Royal Assent on 20 July 2023, becoming the Employment Relations (Flexible Working) Act 2023 (the “Act”).

The changes set out in the Act are to come into force on a date specified by the Secretary of State in secondary legislation.  This is expected to happen within a year of the Act receiving Royal Assent (i.e. by July 2024) to give employers time to prepare. 

We consider below the nature of the upcoming changes and what employers can do to prepare.

What are the changes?

The Act makes the following changes:

1. when making a flexible working request, employees will no longer have to explain what effect they think the requested change would have on their employer and how that effect might be dealt with.  However, that does not mean that this issue cannot be considered/discussed as part of the consultation process (more on this below);
2. employees will be able to make two flexible working requests in a 12-month period (they can currently make one).  However, a request may not be made while another application to the same employer is being considered;
3. employers will have to consult with employees before refusing a flexible working request; and
4. employers will have to make a decision on a flexible working request within two months (the current time limit is three months), unless an extension is agreed between the parties.

The Act does not include a provision making the right to request flexible working a “Day 1” right. However, in its press release about the Act, the Government states that workers will have the right to request flexible working from day one of a new job (employees currently need to wait until they have 26 weeks’ service before making a request). It is expected that this change to the law will be made by secondary legislation at the same time as the above changes come into force.

It is important to note that the right remains a “right to request”. The Act does not introduce an automatic right to work flexibly. 

The eight grounds on which flexible working requests may be refused also remain unchanged. 

ACAS Code of Practice on Handling Requests for Flexible Working

On 12 July 2023, ACAS launched a consultation on an updated draft of its statutory code of practice on handling requests for flexible working. The changes made to the Code reflect the changes in law and also the significant changes to flexible working practices since the Code was first introduced in 2014 and, in particular, following the COVID-19 pandemic.  The consultation is due to close on 6 September 2023.    

The ACAS Code is not legally binding but is taken into account by Employment Tribunals when considering relevant cases. ACAS has indicated that it will also be updating its non-statutory guidance on handling flexible working requests, which sits alongside its Code.

The revised (draft) Code encourages a more positive and collaborative approach to flexible working requests, emphasising that employers must accept a flexible working request unless there is a genuine business reason not to. It also states that consultation meetings about requests for flexible working should be approached with an open mind to discuss what may be suitable. Such meetings may be held in person, remotely or via telephone call.

In addition, the new Code extends the right to be accompanied at a meeting to discuss flexible working requests to include trade union representation (reflecting the right to be accompanied in disciplinary and grievance hearings). The right is to be accompanied under the existing code is by a work colleague only. 

The new Code provides guidance to employers on what to include in their response to a request to help explain their decision and states that employers should allow employees an opportunity to appeal their decision if they decide to reject the request.

What can employers do to prepare for the changes?

Whilst there is no need for employers to take immediate action before the implementation of the changes, suggested steps between now and then include the following:

1. review existing flexible working policies and consider the updates required to bring them in line with the changes.  This should include considering what the “consultation” process will look like.  In particular, although employees will no longer be required to explain what effect they think the requested change to their working pattern would have on their employer and how that effect might be dealt with, it is recommended that that consideration is included in the consultation process/discussions;
2. consider whether it is appropriate/desirable to implement the changes before the changes come into force.  For example, it was recently reported that Tesco has rolled out a new flexible working policy allowing staff to make flexible working requests from the first day of employment;
3. provide training to HR teams and managers on how these changes will impact/alter the way flexible working requests will be handled.  This could also involve allocating more resource to considering such requests given the ability of employees to make two requests in 12 months, the shortened time limit to respond, the fact that the right to request will be a Day 1 right and the possibility of an appeal against a refusal of a request;
4. make sure HR teams/ managers familiarise themselves with the new ACAS Code and guidance once they are finalised;
5. review existing record-keeping practices and consider whether they need strengthening to keep track of the number of flexible working requests made (to ascertain whether two requests have been made in 12 months);
6. review record keeping practices in relation to the consultation and decision-making process undertaken in relation to flexible working requests and consider whether they need strengthening; and
7. since the right to request flexible working will be a Day 1 right, consider whether it would be appropriate to specify what flexible working arrangements would be suitable for a particular role within job advertisements. The idea would be to encourage a constructive discussion and agreement on working arrangements with a prospective employee at the outset, rather than having to deal with a flexible working request at the beginning of employment.

What else is happening?

Separately, the Government launched a call for evidence on 20 July 2023 on “non-statutory” flexible working (due to close on 7 November 2023).  That is, regular flexible working arrangements that have been agreed outside the statutory regime and also ad hoc arrangements which are occasional or temporary. 

The Government is seeking views from individuals and businesses on their experiences of non-statutory flexible working and how it operates in practice.  It is hoped that the responses received will help develop the Government’s evidence base on non-statutory flexible working and inform its flexible working strategy going forward.

Flexible working is likely to remain an area of interest and activity for both employers and employees. We will continue to monitor the changes and await with interest the statutory instruments that will implement the changes.

Please do not hesitate to get in touch with our team for further information on responding to flexible working requests.

Further information

If you have any questions regarding this blog, please contact Georgia Roberts or Özlem Mehmet in our Employment team. 

About the authors

Georgia Roberts is an Associate in the employment team. She has versatile experience dealing with a wide range of employment law matters including dismissals, discrimination, equal pay, redundancies, restructuring, industrial relations, employee engagement, contract disputes, restrictive covenants and employment litigation.

Özlem Mehmet is a Senior Professional Support Lawyer in our Employment Team. Before joining Kingsley Napley, Özlem was a Tutor and Team Leader at BPP University’s Law School, teaching on the Legal Practice Course. She taught the Employment Law, Business Law & Practice, Corporate Finance and Equity Finance modules of the course, as well as the skills modules of Interviewing & Advising and Professional Conduct & Regulation. She also supervised a number of Masters level projects on employment law related topics.