The Employment Relations (Flexible Working) Act 2023 (‘Act’) is today to receive Royal Assent following its passage through Parliament.

The Act, originally published on 21 October 2022 and initially introduced by Yasmin Qureshi (Labour MP for Bolton South East) as the Employment Relations (Flexible Working) Bill, sought to amend the Employment Rights Act 1996 (‘ERA 1996’) to make it easier for employees to request flexible working arrangements.

The initial aim of the Act was clear: to increase flexibility of working arrangements to enable more individuals to enter the workforce. It was further envisaged that the Act would not solely help individuals out of work but also assist those already in employment to balance work and home life.

Over the course of the last 18 months the Bill, as it was then, has passed through both the House of Commons and the House of Lords and now awaits Royal Assent before coming into full force.

What are the changes?

The Act will invoke a number of key changes to the existing legal framework.

The first key amendment concerns an employee’s ability to make a flexible working request. Any such request may include a change to an employee’s working hours or be a request that on certain days the employee works from home. The Act will enable an employee to make two flexible working requests in any 12-month period as opposed to the existing legislation’s current limit of one request in any such 12-month period.

The Act stipulates the time in which an employer must respond to any flexible working request made by an employee, stating that an employer must deal with any flexible working request within 2-months of receipt (so long as no additional extension is agreed between the parties). It is hoped that the inclusion of such a provision within the Act will see flexible working requests raised by an employee dealt with in good time and without undue delay.

In addition, should the employer wish to reject the flexible working request they will not be able to do so until they have consulted with the employee in question. With that said, the Act does not state a minimum required standard of consultation that is legally required to take place and so the effectiveness of such a provision does remain, to an extent, questionable.

However, the Act does remove any burden on the employee to explain what impact their proposed flexible working arrangements would have on the employer’s business and further, what steps the employer may wish to take to mitigate any adverse impact.

Other points of note

Initially, it was referenced that the rights attached to flexible working requests would be a ‘Day 1 right’ – a right that an employee was entitled to from their first day in employment, however this is not the case. An employee still needs to have accumulated 26 weeks’ service before they are able to make a flexible working request. The Government has indicated that it will create Day 1 employment rights through secondary legislation but as this moment in time, none have appeared.

Further, and as touched upon above, the Act does not provide a minimum standard of consultation that is to be undertaken by an employer seeking to reject a flexible working request. There is no legal requirement for the consultation to be a substantive exercise nor one that covers all of the available options open to the employer or employee. In practice, how effective the consultation process will be is of particular interest.

Where an employer rejects a flexible working request, the Act is silent and does not require that an employer offers a right of appeal to the employee. Although this is the case, it is to be noted that the ACAS Code of Practice on Flexible Working recommends that a right of appeal is offered in circumstances where a flexible working request has been rejected.

Conclusion

The impact that The Employment Relations (Flexible Working) Act 2023 has in facilitating flexible working will be of interest when it comes into full force however, more broadly, the Act’s ability to pass through Parliament is indicative of the shift towards increasingly employee friendly employment practices whilst further reinforcing the importance of taking into account the need for accessibility of flexible working arrangements.

This article is for general guidance only and should not be used for any other purpose. It does not constitute and should not be relied upon as legal advice.