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Article written by Nic Hart, Alice Head and Sophia Radford of Duane Morris LLP

Not yet a day-one right

Whilst it was initially considered that the new Act would make the right to request flexible working a day one right, this has not yet been implemented.  Currently, employees will still be required to have 26 weeks service before they are eligible to make a request.  The Government has advised that they still intend to make flexible working requests a day one right, but this will now be dealt with through secondary legislation for which they have given no timeline.

In response to the new legislation regarding flexible working requests Acas has launched a consultation to update its current Code of Practice for dealing with flexible working requests. This consultation will run until 6 September 2023 following which Acas intends to update both their Code of Practice for dealing with flexible working requests as well as their non-statuary guidance.

A “right to request, not to have”

The new Act may be timely given leadership teams are increasingly keen for employees to return to the office following the pandemic. However, it is important to note that the new legislation is intended to assist employees in making a flexible working request and not a right to be granted flexible working. Employers are still able to refuse a flexible working request if they have dealt with the request in a reasonable manner and consider that they are unable to accommodate the request on one of  8 business grounds.  These remain fairly wide and include:

• the burden of additional costs to the business
• detrimental effect on ability to meet customer demand
• an inability to reorganise work among existing staff
• an inability to recruit additional staff to provide cover
• a detrimental impact on quality
• a detrimental impact on performance
• an insufficiency of work during the periods in which the employee proposes to work  
• planned structural changes to the employer’s business.

What does this mean for employers?

There may be an increased administrative burden on employers given:

• Employees will now be able to make two flexible working requests in any 12-month period.
• Employers have a reduced window (two months)to deal with the request. And any response  should also include a form of consultation.

In light of the new Act employers would be advised to:

• Review any current flexible working request process and implement a form of procedure to accommodate the new changes and provide for some form of consultation;
• Be open to considering flexible working requests – it may provide a more agile workforce and increase staff retention of valued employees;
• Consider each request on its own merits but ensure consistency in dealing with each request
• Consider offering a trial period to determine whether the flexible working pattern requested will work for the business;
• Ensure payroll and others are given notice of any pro rata reduction to pay/ benefits;
• Consider whether an employee’s annual leave entitlement will be affected;
• If an employer cannot agree the request, they must be clear on the business reasons and ensure that any refusal comes within in one of the 8 reasons set out above;
• Document all steps (whether a request is agreed or refused) and ensure any affected terms of employment are also updated or amended;
• Remember that any failure to deal with a flexible working request may result in a claim to the employment tribunal for discrimination.

The Employment Relations (Flexible Working) Act 2023 will require careful consideration and proactive adaptation from employers. As businesses adapt to the changing landscape of work, understanding the Act and ensuring  compliance with both the new and existing requirements of managing flexible working requests will be critical to fostering harmonious employer-employee relationships and staying ahead in an ever-flexible world.

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