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During the COVID-19 pandemic, there was a need for many employers to provide the ability to work from home. Although the pandemic is considered at an end and no more restrictions apply, there has been a particular focus on new ways in which employers can/should implement flexible working, allowing employees who have responsibilities outside of work to be able to better adjust their working life to suit.

In response, the government has introduced The Employment Relations (Flexible Working) Act 2023, which will come into effect from 6th April 2024, making some welcome adjustments to the Employment Rights Act 1996. Employees need to be aware of their rights in regard to flexible working with this upcoming change, and equally employers need to be mindful of their responsibilities when an employee requests flexible working.

Flexible working can mean many things in England and Wales, whether that’s adjusted hours, working from home or job shares. The old legislation stated that:

  • LENGTH OF SERVICE: To make a flexible working request, an employee would first have to be working for the same employer for no less than 26 weeks continuously;
  • NUMBER OF REQUESTS: An employee could only make one request per year;
  • IMPACT: The employee would need to explain the impact of the flexible working on their employer;
  • CONSULTATION: There was no requirement for the employer to consult with the employee before giving an answer to the request (though this did commonly occur); and
  • RESPONSE: The employer had up to three months to respond to the request.

The new legislation will make considerable changes to these requirements:

  • LENGTH OF SERVICE: There is now no minimum service requirement to make a request;
  • NUMBER OF REQUESTS: Employees can now make up to two requests per year;
  • IMPACT: The obligation to explain the impact on the employer has now been scrapped;
  • CONSULTATION: The employer will now need to consult with the employee before making their decision; and
  • RESPONSE: The employer now has up only two months to respond to the request.

Although it is important for employees to understand that these changes don’t mean any flexible working request will always be granted, it does mean that the employer will likely need to show that they have considered the request properly before making any decision that impacts the employee. The reasons an employer can give for rejecting a flexible working request have not been updated by the new Act and remain in place. These reasons include

  • additional costs,
  • an inability to re-organise work amongst existing staff,
  • an inability to recruit,
  • detrimental impacts on quality and performance; and
  • an insufficiency of work during the hours requested.

In response ACAS published an updated code of practice to reflect the upcoming changes and employers should be mindful of updating their own internal policies to make sure they don’t fall foul of the Act in the future.