When the government announced its proposals to reform flexible working in 2021, many envisaged a momentous transformation in their work-life balance.

Fast forward two years, and the Employment Relations (Flexible Working) Bill has successfully received Royal Assent. However, is it the profound shift that so many had anticipated?

Within this article, we recap the background to the Employment Relations (Flexible Working) Act 2023, explain what is changing and what will remain unaffected according to this new legislation, and delve into the reasons why, in the grand scheme, it might not make much difference to how requests are dealt with in practice.

The context to the flexible working changes

In July 2019, an official consultation was launched by the government which considered, amongst other things, the transparency of flexible working. That same year, the Conservative Party manifesto, which was published in advance of the 2019 general election, stated that the party encouraged flexible working and would consult on making it the default position, unless the employer had good reason not to allow it.

Throughout the pandemic, the government reiterated these intentions, as the evolving circumstances underscored the importance of flexible working arrangements and sparked new interest in flexible working reform.

The response to the consultation was published in December 2022. Within it, the government confirmed its intent to introduce changes to flexible working legislation. The first changes were wrapped up in the Employment Relations (Flexible Working) Bill, which successfully navigated its way through Parliament and received Royal Assent on 20 July, 2023.

Although a specific date for implementation of these changes has not been set, employers should be aware that they are likely to come into force within the next 12 months.

Four key changes to flexible working rules

The Employment Relations (Flexible Working) Act 2023 introduces a series of changes that affect both the rights of employees and the obligations of employers concerning flexible working arrangements.

These changes are geared towards enhancing the flexibility and accessibility of work arrangements, making it easier for employees to request flexible working options. The changes will also impose corresponding responsibilities on employers to consider and accommodate such requests in a fair and reasonable manner.

Under the Act, employees will:

• Be able to make two requests in any 12-month period, rather than one.
• No longer be required to explain what effect, if any, the change they are requesting would have on the employer and how this might be dealt with.

Additionally, employers will:

• Be required to deal with a request within two months, rather than three.
• Be required to consult with the employee before rejecting their request.

Much ado about nothing?

Considering the substantial media spotlight cast upon the Act, it’s reasonable that that employers may be concerned about receiving an influx of requests and how this might impact their operations. Indeed, even the government has presented the new legislation as a massive overhaul, claiming that “millions will benefit from new flexible working measures”.

Nonetheless, despite the headlines seeming to suggest that employers will soon be forced to accommodate demands for flexible working, in reality, the Act is unlikely to make any real difference to how requests are handled.

Fundamentally, the creation of a day one right to request flexible working – which will be most employers’ primary concern – is not included within the Act, despite the government’s press release indicating otherwise.

This change (to give employees the right to request flexible working from day one of employment, instead of having to wait until they have completed 26 weeks of service) is still planned, and the government has said it will bring forward secondary legislation in this regard, but it could be some time before that happens.

What remains unchanged: legal grounds for refusal

Another reason why the Act might not be the monumental change it seems is that, from a purely legal perspective, employers will still have the same powers to deny requests as they did before. There are eight specified reasons to refuse a request, and these remain unchanged.

Additionally, if an employee is dissatisfied with an employer’s decision, recourse to challenge it under flexible working legislation remains limited. They may be able to take their employer to a Tribunal for issues such as not dealing with a request in time, turning it down for reasons outside of the eight prescribed in the legislation, or not dealing with the application in a reasonable manner; however, if the employer has done all of that and the employee is simply not happy with the outcome, there is little they can do except follow the company’s procedures for appealing.

Moreover, if a dispute over flexible working did make its way to Tribunal and the employee’s claim was to succeed, the maximum penalty is only eight weeks’ pay, unless the employee has raised other claims – for example, indirect sex discrimination or constructive dismissal. As such, the financial risk to employers for claims purely around the flexible working procedure is relatively low.

Getting prepared for the changes

Of the changes to the flexible working scheme that are being brought about by the Act, the two which are likely to impact employers the most are the reduction in the timeframe for dealing with a request, and the right for employees to make two flexible working requests in any 12-month period, rather than one.

As we await an official implementation date, projected to be sometime in 2024 as the Act will require an accompanying Code of Practice which Acas are consulting on – employers might consider proactively equipping themselves for these impending changes by preparing an updated Flexible Working Policy which can be released from the date they come into effect.