Flexible working bill achieves Royal Assent

Sophie Robertson

The Employment Relations (Flexible Working) Bill received its Royal Assent on 20 July 2023.

Under this legislation, employees will gain the right to make two flexible working requests in any 12-month period. This is a change from the current position, which limits flexible working requests to one in a 12-month period.

In addition, the new legislation requires employers to respond to requests within two months of receiving them (formerly 3 months) and employees will no longer have to explain the impact that granting their request would have on the organisation or their role. Employers will also not be able to refuse a request until they have consulted with the employee.

There had been much discussion from the government about making the right to request flexible working a “day-one right”; however, this has not been expressly included in the bill. The government indicated during its announcement that it will deal with the day-one right through separate legislation, but this is yet to be confirmed.

What does this mean for employers?

In practice the change is unlikely to be substantial and whilst there are notable changes in the legislation, employers can still deny flexible working requests and the eight statutory grounds for refusing a flexible working request have not changed, namely:

• the burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to reorganise work among existing staff;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• insufficiency of work during the periods the employee proposes to work; or
• planned structural changes.

The measures brought in by the legislation are expected to be supported by a statutory Code of Practice which is currently being developed by ACAS and which is likely to provide employers with guidance on handling these requests.

Although the legislation does not go as far as to make flexible working the default for all employees, it does aim to encourage earlier and improved conversations around flexibility, whilst still enabling an employer to put the needs of their business at the forefront where flexibility isn’t possible.

Contact Bermans Employment Team.