Employment Relations (Flexible Working) Act 2023

Last Thursday, the Employment Relations (Flexible Working) Act 2023 received Royal Assent. Its provisions now wait for the Secretary of State to make regulations appointing the day on which they come into force. The Act, which started life as a Private Members’ Bill brought through the ballot by Labour’s Yasmin Qureshi MP, makes small but important changes to sections 80F and 80G of the Employment Rights Act 1996.

The Act makes four useful amendments to the current provisions. It:

• Deletes s.80F(2)(c), and hence removes the requirement for the employee to identify the effects of the proposed change in working and to make suggestions about how to deal with that impact;
• Increases from one to two the number of flexible working applications that can be made every 12 months;
• Requires an employer to consult with the requesting employee before refusing a flexible working request; and
• Reduces the decision period in which a request has to be dealt with from three to two months (subject, as previously, to the possibility of the parties agreeing to an extension).

There are a few points to notice about what is NOT included in the Act.

First, an employee still has to work for 26 weeks before they have the right to make a flexible working request. Some reports wrongly proclaimed that the Act (or Bill as it then was) gave employees day one rights to make a statutory flexible working request. There was a separate Private Members’ Bill brought forward by Tulip Siddiq MP which sought to make that change, but that never reached second reading. Ms Siddiq also proposed an amendment to similar effect at the Committee Stage of the new Act, but that was withdrawn on the strength of a promise by the Government to introduce day one rights under secondary legislation (given that the current 26 week qualifying requirement is found in reg 3 of the Flexible Working Regulations 2014 rather than in the Employment Rights Act 1996 itself).

Secondly, whilst the new Act requires consultation between employer and employee before a request is rejected, it is silent as to the quality of consultation required. That is unfortunate and it rather emasculates the protection. When the Government carried out its consultation last year, it spoke of its intention to take forward a requirement to hold a discussion before rejecting an application, and that the discussion should be used as a means of exploring available options. It is not clear to me why the new Act does not reflect that substantive approach to consultation. The Act does not even contain provisions giving the Secretary of State power to set out statutory guidance on what consultation under the Act amounts to.

Thirdly, it is a shame that the new Act did not include a right of appeal. The current position is merely permissive – the employer MAY grant a right of appeal a rejection of a flexible working request, but does not require them to do so. In the ACAS ‘Code of Practice on handling in a reasonable manner requests to work flexibly’ employers are told that they SHOULD allow an appeal against a rejection, but that goes further than the statutory requirements. It is unfortunate that the opportunity was not taken within the new Act to square this circle.

Finally, only employees have the statutory right to make a flexible working request. Workers of course also have the same life problems and dilemmas as employees, and many work in situations not dissimilar from employees, and have the same reasons for wanting flexibility in their working week. It is hard to discern a good reason for limiting the right to make a statutory flexible working request to employees, and it is a pity this was not addressed in the new Act.

To conclude, the Employment Relations (Flexible Working) Act 2023 provides welcome improvements to the statutory regime on flexible working requests, but it leaves for another day (whether by this Government or the next one) a number of improvements necessary to perfect the legislation.

24th Jul 2023

Jason Braier

Call 2002