Upcoming changes to Flexible Working entitlements

There’s going to be some changes to flexible working rules next year that you’ll need to be aware of. The Employment Relations (Flexible Working) Act 2023 received Royal Assent on 20 July and is due to come into force in 2024. This legislation introduces significant changes to the current flexible working regime, allowing further rights to employees making formal flexible working requests. We have summarised the key changes below:

• Under the new Act, employees are now allowed to make up to two flexible working requests within a 12-month period, rather than just one request as is currently the case.
• Employers must address requests within two months if no extension is agreed, rather than the current three months.
• Before they can reject a flexible working request, employers are now obliged to have engaged in consultation with the employee. However, the Act does not specify the extent of the consultation required nor set out minimum requirements, leaving the scope of consultation at the discretion of the employer.
• Employees are no longer required to provide an explanation of the potential effects of flexible working and how such effects would be managed. This simplifies the application process for employees.

Despite all these changes, there are some notable omissions that did not make it into the Act. Contrary to widespread reporting, the Act does not grant a ‘Day 1 right’ to employees. This means they still need to complete 26 weeks of service before becoming eligible to make a flexible working request. Day 1 rights may be introduced through secondary legislation at a later date. The Act also does not require employers to offer employees the right of appeal in the event their flexible working request is denied. While the ACAS Code of Practice on Flexible Working recommends a right of appeal, the Act does not make it a requirement.

What can you do to prepare for these changes?

They first thing that employers should do is to review their current flexible working policies and update them accordingly to ensure they comply with the new legislation, as existing policies are unlikely to do so. Policies are the first place that managers will look for guidance when presented with a formal flexible working request, and so it’s important to ensure that that guidance is up to date.

The most likely mistakes that employers will make if they’ve not adapted their processes to take into account the new legislation will be to reject a formal request where a request has previously been made in the previous 12 months, or to take too long in responding to a formal request.

Failing to properly deal with a formal flexible working request from an employee can lead to significant and expensive Employment Tribunal claims for employers. Given the relatively tight timescales involved in dealing with such request, it’s important for employers to seek advice if they’re unsure how to respond or resolve such a request.

For futher information and advice visit www.lesteraldridge.com