By Lisa Kelly, partner at Muckle.
A narrated version of this blog is available at the bottom of the page
The Employment Relations (Flexible Working) Bill has received Royal Assent. Key changes brought about by the Bill include requiring employers to consult with employees before refusing flexible working requests and increasing the number of requests an employee can make for flexible working within a 12-month period.
Background to the Bill
In April 2003, the UK government first introduced the right to request flexible working for parents and certain other carers. The right included requesting a change to work location, number of working hours and the associated working pattern. In 2014, this was extended to all employees with 26 weeks of continuous service.
The government’s 2019 manifesto committed to encourage flexible working and the Covid-19 pandemic made the need for flexible working ever more prevalent. But the data shows there’s still some way to go in order to make flexible working accessible for all.
On 23 September 2021, the government launched a consultation paper on making flexible working the default, which sought comments on five changes to better the current legal framework on flexible working, including giving the right to request flexible working from day one, reviewing the eight business reasons for refusing a request for flexible working, considering whether there should be an obligation on employers to suggest alternatives, whether there should be a change to the administrative process underpinning flexible working rights and whether there should be a right to request a temporary flexible working arrangement.
On 5 December 2022, the government published its response to the consultation. The government confirmed that it would take forward a number of the proposals, including:
- Making flexible working a day-one right.
- The obligation on employers to consult with the employee to explore the available options before rejecting a flexible working request.
- Changing the administrative process for making a request.
- Removing the requirement to set out how the employer might deal with the effects of their flexible working request.
- Developing enhanced guidance to raise awareness and understanding of making and administering temporary requests for flexible working.
2023 update
On 12 July 2023, Acas – the government-sponsored independent public body which promotes better employment – issued a consultation on an updated statutory Code of Practice, anticipating changes introduced by the Bill, which is more detailed than the previous version and emphasises the need to keep an open mind when dealing with requests.
In addition, Acas will update its non-statutory guidance on flexible working that sits alongside the Code of Practice. The consultation will remain open until 6 September 2023.
The Bill received Royal Assent on 20 July 2023.
What will the Bill change?
Not all of the changes that were consulted upon or in the government response made their way into the Bill, including perhaps most controversially the right to request flexible working from day one.
However, the Bill makes the following changes to sections 80F and 80G of the Employment Rights Act 1996:
- When making a request, an employee will no longer have to explain the effect they think their requested change would have on the employer and how any such effect might be dealt with.
- Requests will no longer be limited to one request in any 12-month period and instead employees will be able to make two requests in any 12-month period provided another request with the same employer isn’t already proceeding.
- Employers will be required to consult the employee about the request before they can refuse a request.
- The time for an employer to make a decision will be reduced from three to two months unless the parties agree to a longer period.
ACEVO members: if you need employment advice in regard to flexible working, get in touch with Muckle.
