The Employment Relations (Flexible Working) Act 2023 has now received Royal Assent. What will these changes mean for HR, employers and employees and are the changes as we previously thought? Emma O’Connor, Legal Director, reports.
What is changing?
HR will need to be aware of the following procedural changes:
Employees will be able to make 2 statutory flexible working requests every 12 months – currently, employees can only make one statutory request a year;
Before rejecting a request, employers will need to consult with an employee, presumably to discuss why they are rejecting the request and whether the employee has any suggestions to make (the Act is silent as to what consultation actually means and what a process might look like, although a meeting or some written communication would be advisable);
Employees will no longer have to explain the impact of their request on the employer’s business (although this looks like it would form part of the consultation process referred to above);
Employers will have 2 months to complete the statutory process (from date of receiving the statutory request to appeal) rather than 3.
What has not changed?
Previously, we had reported there was a proposal that the right to request flexible working – and remember, it is still only a right to request flexible working – was going to be a “day one” right. The new Act does not change the need for employees to have 26 weeks’ continuous service to be able to make a request. However, this may change at a later date.
When do the changes take effect?
Expect further announcements on this to be made, including an ACAS consultation and a new code of practice. For now, the current regime applies.
What should HR be doing now?
As explained, the statutory right to request flexible working is a right on the part of the employee to make a request. The employer can still refuse a request based on the same 8 statutory grounds for refusal. With all requests for flexible working, it is important that employers consider the requests carefully and not make assumptions as to whether a working patter will or will not work, or whether there is an inability to recruit or divide up work. It is always advisable to have evidence of searches or discussions etc to support a rejection rather than a flat “no”. This is because there is still a risk that a rejection could be indirect discrimination – particularly, sex discrimination.
Reviewing policies and procedures as well as ensuring managers know how to spot a request and what to do in the event they receive a request is going to be vital. With the time limit expected to change, getting your managers up to speed now is advisable.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.