Changes to flexible working rights

The Government's flexible working bill (the Employment Relations (Flexible Working) Act 2023) passed into law on 20 July 2023. The legislation, expected to come into effect in July 2024, introduces a number of changes to an employee's right to request flexible working that employers should therefore be aware of:

• Employees will be able to make two requests per year rather than one, although employees must wait for the outcome of their first request before submitting a second.
• Employers will need to consult with an employee before rejecting their flexible working request. The Act does not stipulate what that consultation should cover, how long it should last or how it should be conducted. We suggest that a meeting, whether held in-person or online, to discuss the employee’s request (e.g. their motivations for making the request, any concerns the employer might have about granting the request etc.) would be sufficient.
• The requirement for employees to explain what impact they think their requested change would have on the employer’s business and how that effect could be dealt with has been removed, although this may come up as part of the consultation process referred to above in any event.
• Responses to requests must be made within two months rather than three.

Despite a lot of media coverage about the right to make a flexible working request becoming a “day one” right, the Act does not make this change and employees currently still need 26 weeks’ continuous service to be eligible to make a request. This change is expected to be brought in via secondary legislation at a later date.

Whilst these changes do improve employees’ rights in respect of flexible working requests, ultimately the right is to make a request and there is still no obligation on an employer to grant an employee’s request; the eight lawful bases on which an employer can reject a flexible working request remain the same.