As we told you in a previous Update [2022/31] The Employment Relations (Flexible Working) Bill was introduced on 15th June 2022 by Labour MP Yasmin Qureshi as a Private Member’s Bill.  It has now passed through parliament and The Employment Relations (Flexible Working) Act 2023 currently awaits Royal Assent.

The Bill does make a number of changes to the current flexible working procedure, but it is perhaps more striking in terms of what it does not do, despite the Government’s proclamations in December of last year.

The Act will now enable employees to make two flexible working requests in any 12-month period; and any request will have to (unless otherwise agreed) be dealt with by the employer within two months of receipt.  The employee no longer has to explain what effect their application may have on the business; and how this may be resolved. Any request may not be refused until the employer has ‘consulted’ with the employee over the request.

The Act does not expand on what is meant by “consulted” with the employee; and what it should look like; or how long this should go on for!

Our advice would be that when you receive an application for flexible working, you will need to meet the employee (‘consult’) to discuss and consider the request.  If the request can be accommodated, it is unlikely to be an issue; but if the request cannot be accommodated, then it is important that you can justify the refusal for one (or more) of the grounds below:

• The burden of additional costs.
• Inability to reorganise work amongst existing staff.
• Inability to recruit additional staff.
• Detrimental impact on quality.
• Detrimental impact on performance.
• Detrimental effect on ability to meet customer demand.
• Insufficient work for the periods the employee proposes to work.
• Planned structural change to your business.

The grounds upon which an employer can refuse a flexible working request remain unchanged.

 If you ‘consult’ with the employee on why the request cannot be accommodated, then the explanation may appease any disappointment the employee has in their request being refused.  If you’re unable to accommodate a flexible working request, you should obtain HR advice to ensure that you have considered the employee’s request fully.

Additionally, the Act does not:

• Remove the 26-week qualifying period before employees can request flexible working (there was talk of an employee having the right to make a flexible working application on day one of employment); 
• Require employers to offer the right of appeal against any decision to refuse a flexible working application. (However, clients should be aware that he ACAS Code of Practice on Flexible Working does recommend the right of appeal be offered; and the courts will still take a dim view of employers who fail to adhere to the ACAS Code of Practice).

As we have stated previously, this right is still to request flexible working and not an automatic right to have flexible working.  Whilst the Act is widely supported by commentators, we will have to wait and see if it makes any substantial difference to the numbers of flexible working requests that are made or accepted.  Given the significant shift towards individuals wishing to work from home, following the Covid pandemic, we anticipate more people making flexible working requests to work from home (if they have not already made such a request)! We will keep you informed of developments and when the new rules will become effective.

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