The Employment Relations (Flexible Working) Bill received Royal Assent on 20 July 2023. It requires regulations to be implemented, but once in force will:
- allow employees to make two (rather than one) flexible working requests in any 12 month period (but there can only be one live application at a time),
- require employers to consult before refusing a request,
- require employers to make their decision within two rather than three months (unless an extension is agreed), and
- remove the requirement that the employee must explain in the statutory request what effect the change would have on the employer and how that might be dealt with.
Currently the right is subject to a 26 week service requirement. The Act does not include an amendment to make this a ‘day one’ right but it is understood that the Government intends to implement this change in the regulations.
A statutory flexible working request can relate to a change to hours, times or location of work (permanent or temporary). There is no change to the list of permitted business reasons for refusing a request, nor to the remedy for breach (up to eight weeks’ pay subject to the statutory weekly pay cap, so currently capped at £5,144).
Consultation with the employee
The Act does not include any detail on the new consultation requirement, but the general obligation to deal with a statutory request “in a reasonable manner” remains. Further detail of what may be required (depending on the circumstances) is set out in the draft updated Statutory Code recently published for consultation by Acas until 6 September. Tribunals are required to take the Code into account where relevant.
The draft Code suggests that, without unreasonable delay, the employer should arrange a formal meeting with the employee before rejecting a request. At the meeting the parties should consider and explore the potential for any alternative arrangements which may be available and suitable. In a change from the current version of the Code, the new draft also suggests that offering a meeting could be beneficial even in cases where an employer is intending to accept a request, as this can bring to light any additional considerations and help in implementing the arrangement successfully. In a further change, the draft suggests that employees should be allowed to have a union representative or official as a companion at any meeting (the current version refers only to work colleagues).
The Foreword to the draft Code notes that “Consultation meetings about requests should be approached with an open mind to discuss what may be suitable. Meetings are an opportunity to listen carefully and engage meaningfully with each other so that a fully informed, evidence-based decision can be made”. It emphasises that the default position should not be to reject requests.
Refusal of a request
The draft Code states that when refusing a request, in addition to specifying the business reason for refusal, employers should set out such additional information as is reasonable to help explain the decision, and should also offer a right of appeal. These are not express legal requirements but will be considered as part of handling a request in a “reasonable manner”, depending on the facts.
Other guidance
Acas will update its non-statutory guidance on flexible working which sits alongside the Code.
A statutory Code of Practice on handling requests for a predictable work pattern will also be published before that new right comes into force (the Workers (Predictable Terms and Conditions) Bill is currently awaiting its final reading in the House of Lords). The draft Code on flexible working requests notes that any statutory request, whether framed as for flexible working or predictable work, will count towards the two per year cap under both regimes and the prohibition on concurrent requests.
Conclusion
Employers should keep a watching brief and plan to update their flexible work request policies once the timeline for the changes is known.
Of course it has always been best practice to properly consider flexible working requests (even if not compliant with the statutory regime) to avoid potential discrimination claims.
For further information, please contact:
Anna Henderson, Herbert Smith Freehills
anna.henderson@hsf.com
