You may be aware that the Government have discussed changes to flexible working over the past couple of years. The Bill has now completed its passage through Parliament and will become law. The new Act will make a number of changes to current rules around flexible working.

In particular, the new changes will be:

• Employees will be able to make two flexible working requests in any 12 month period;
• Employers cannot simply refuse a request and can only do so once they have consulted with the employee;
• Requests must be dealt with within 2 months of receipt, unless an extension is agreed between the employer and employee;
• There is no longer a requirement on the employee to explain, within their application, what effect they believe agreeing to the request may have and how any effect may be dealt with.

Despite this, flexible working requests will still not be a “Day 1 right”. Employees will still be required to have at least 26 weeks’ service before they can make a request. It is likely that a Day 1 right to flexible working will be created through secondary legislation, although this is not confirmed and does not form part of the Act. Therefore, for the time being at least, employees will still need 26 weeks service before they are able to make a request.

There is also no definition of what amounts to a consultation with the employee in relation to the flexible working request. There is no requirement that the consultation covers the options available to the employee and employer in granting or refusing the request. In fact, the Government has not set out a minimum standard of consultation for the process.

Employers need not offer a right of appeal if a flexible working request is rejected. However, ACAS recommend that employers offer a right of appeal withing their Code of Practice on Flexible Working, which can be found here: https://www.acas.org.uk/acas-code-of-practice-on-flexible-working-requests

ACAS has recently launched a consultation regarding updates to the above-mentioned Code of Practice. The new Code will seek to encourage employers to take a more positive approach to flexible working requests and encourages open-mindedness so that requests are not automatically rejected without careful consideration and discussion between the employer and employee.

The new law will apply in England, Scotland and Wales and is expected to come into force in approximately July 2024, in order to give employers time to prepare for the changes.

In readiness for the changes, employers should review and update their existing policies on flexible working. In our experience, being open to flexible working not only benefits employees but also leads to more diverse and inclusive workplaces which in turn benefits employers and also has a positive impact upon recruitment and retention, which is key in such a challenging labour market.

Please contact us if you would like more information about the issues raised in this article or any other aspect of employment law at 02920 345 511 or employment@berrysmith.com