Flexible Working Act receives Royal Assent

Following the passage of The Employment Relations (Flexible Working) Bill 2023 through Parliament, Royal Assent has now been received making it an Act of Parliament.

We have previously written about changes the Government was proposing to make that were set out in its response to consultation, but the Act does not give effect to all of those proposals including:

1. No longer to be a Day 1 right

• It was previously expected that the right to request flexible working would become a Day 1 right. The Act has not implemented that change and eligible employees will still require 26 weeks continuous service to make a statutory request.
• The creation of Day 1 rights is said to be forthcoming in secondary legislation, so it is a case of “watch this space”, but for now the status quo is maintained in terms of service length requirements.

2. No need to discuss alternatives

• It was expected that employers would be required to discuss alternative options before they rejected a particular flexible working request. However, whilst the Act requires employers to “consult” before rejecting an application, there is no statutory minimum as to what that consultation should involve.

3. No requirement to offer right of appeal

• Whilst the right to appeal has long been recommended in the ACAS Code of Practice, and also featured as a proposal in the Government’s earlier response to consultation, the Act does not require employers to extend this right to employees (although they may choose to if they wish).

The more modest changes the Act will bring into force include the right for eligible employees to make two (rather than the current one) flexible working requests in a 12-month period and reduces the period for an employer’s response to 2 months in the absence of an agreed extension. Employees will also no longer be required to explain the impact of their request or how this can be addressed.

Acas published a consultation on an updated draft Code of Practice on 12 July. That consultation will run until 6 September. However, the draft under consultation anticipated the legislative changes as set out in the Government’s response so further amendment may be required to account for the final position.

Acas acknowledges the impact of rapid technological advancements and the transformative effects of the COVID-19 pandemic, both of which have contributed to evolving attitudes towards flexible working among employers and employees alike. The consultation document recognises the need to align the Code of Practice with current best practices and embrace the shifting landscape of the modern workplace something that the Act aims to achieve.

The draft Code of Practice is still a worthwhile read for those of you involved in managing flexible working requests in the workplace albeit with a note of caution that certain elements may be subject to change.