New Flexible Working Bill - Changes and omissions

The Employment Relations (Flexible Working) Act 2023 has been making its way through the Parliamentary process and has finally Royal Assent. While this Act introduces significant changes to the current flexible working regime, some key last minute changes have been made.

Changes which will be introduced by the Act:

• Increased Number of Requests: Employees will now have the ability to make two flexible working requests within any 12-month period.
• Timeframe for Response: Employers must respond to requests within two months of receiving them, unless an extension is agreed upon.
• Consultation Requirement: Employers will be required to consult with employees before refusing a flexible working request. However, the Act does not specify any minimum requirements for this consultation process (or even that consultation is meaningful).
• Removal of Requirement for Impact Explanation: Employees will no longer be obligated to explain the anticipated effects of their requested flexible working arrangement or how any potential effects will be managed.

Changes previously proposed which will not be introduced:

• No "Day 1" Right: The Act does not grant employees the right to request flexible working from the start of their employment. However, this could be temporary. The government has indicated its intention to introduce "Day 1" employment rights through secondary legislation.
• No Requirement for Appeal: The Act does not mandate that employers offer a right of appeal if a flexible working request is rejected. Although the draft ACAS Code of Practice on Flexible Working does recommend providing an appeal process.
• Absence of Substantive Consultation Requirement: The Act does not establish a minimum standard of consultation between employers and employees. It does not outline the necessary depth or scope of consultation, leaving it open-ended.

While the Act itself does not grant "Day 1" rights, the government intends to introduce secondary legislation at the same time as the new Act becomes law (in around a year’s time).

Have your say: Acas consults on new Flexible Working Code of Practice

Acas has issued a consultation on an updated statutory Code of Practice, reflecting anticipated changes that will come into effect when the new Flexible Working Act becomes law. This Bill aims to enhance flexibility in the workplace by removing the current qualifying period for making a flexible working request and introducing measures to facilitate agreement between employees and employers regarding flexible working patterns.

The draft Code of Practice builds upon its 2014 predecessor, providing a more comprehensive and detailed framework. It includes a new Foreword emphasising the benefits of flexible working and the advantages of consulting with employees about their requests. The Code encourages employers to approach requests with an open mind, promoting the principle that rejection should not be the default position. The document outlines principles of good practice, such as transparency in decision-making, offering an appeal process for rejected requests, and allowing employees to be accompanied at meetings.

A crucial point for employers to note, is that the draft Code reproduces the eight business reasons already specified in the Employment Rights Act 1996 that can be cited for rejecting a request. It emphasises that employers must engage in consultation with employees before making a decision and outlines the necessary elements of this consultation process.

Acknowledging the evolving landscape of flexible working, Acas recognises the impact of technological advancements and the COVID-19 pandemic, which have prompted shifting attitudes towards flexible work arrangements. The Code is seeking to align with current best practices, taking into account these changing dynamics.

Alongside the updated Code, Acas will also revise its non-statutory guidance on flexible working, providing additional resources to support employers and employees in navigating this evolving landscape.

The consultation period is open until 6 September 2023, providing an opportunity for stakeholders to share their insights and contribute to the final version of the Code. Responses can be submitted online or via email to consultations@acas.org.uk

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Call us on 01622 759 900 or email us at enquiries@outsetuk.com