Changes to the UK’s statutory regime for flexible working have been in discussion for several years, but reforms are now coming to fruition.

Improving flexibility for the modern working environment has been on the agenda for many years, and the flexible working movement gained further momentum following COVID-19 lockdowns, with developments in technology making remote working much easier for many. The Chartered Institute of Personnel and Development (CIPD) reports that 40% of businesses have seen a post-pandemic increase in flexible working requests with an estimated two million employees having left their jobs in the past year due to a lack of flexible working.

In this context, it was recently announced that several changes to the UK’s statutory regime for flexible working are expected to come into force next summer, and Acas began consultation on a new Statutory Code of Practice on flexible working.

The Employment Relations (Flexible Working) Act 2023 (the Act), which received Royal Assent on 20 July 2023, will increase the number of requests an employee can make and introduce a requirement for employers to consult with employees before rejecting a request. However, the change that continues to gain the most press attention, namely the right to make a flexible working request from day one of employment, is conspicuously absent from the Act.

We consider what these changes mean in practice for employers.

What is the current flexible working regime in the UK?

Currently, employees with at least 26 weeks’ continuous service can request changes to their employment contracts to allow for flexible working. Typical flexible working requests include a change of place of work (e.g., to work from home instead of the office) or working time (e.g., to increase or decrease days/hours or times of work).

Flexible working requests must (i) be in writing, (ii) be dated, (iii) state that it is a statutory request, (iv) specify the change sought and when the employee wants it to take effect, (v) explain what impact the change would have on the employer and how it could be dealt with and (vi) state whether a previous application has been made and when. Employees can make one request in a 12-month period.

Employers are not required to accept or accommodate every request. However, employers should deal with each request reasonably and must respond within three months of the request being made. Where employers refuse a request, it should only be for one or more of eight statutory grounds. These include the burden of additional costs, the detrimental effect on the ability to meet customer demand or performance/quality and an inability to reorganise work among existing staff. Employees can seek compensation before employment tribunals for a failure to comply with this regime. There are also risks of discrimination claims where requests are not treated fairly and consistently.

What changes will the Act introduce?

The Act, which is expected to come into force in summer 2024, introduces the following changes:

  1. Employees will be able to make two requests in a 12-month period (although they will not be able to make a second request whilst the first is outstanding).
  2. Employees will no longer have to explain in a written request the impact of their request on their employer (with the aim of making requesting flexible working easier and more accessible).
  3. The timeframe for an employer to respond to a request will be reduced from three months to two months.
  4. Whilst the eight statutory reasons for rejecting a request remain unchanged, employers will need to ‘consult’ with an employee before rejecting their request (draft guidance indicates a meeting and consideration of alternatives will be required ‒ see further below).

What other changes are expected?

Flexible working as a ‘day-one right’

Whilst most of the key changes arising out of the Government’s commitments following a 2021 consultation on flexible working have been addressed by the Act, there was one notable absence – the removal of the 26-week service requirement before an employee can make a request. This has previously been held out as a key part of the anticipated changes to the flexible working regime, and it has garnered significant attention, including in press reporting around the Act’s Royal Assent, despite it not actually being included in the Act.

However, it looks as though the Government still intends to introduce this change via secondary legislation when the Act comes into force. A recent Government press release announcing the Act receiving Royal Assent continues to refer to making flexible working requests a ‘day-one right’ and estimates that an additional 2.2 million employees will have access to the regime as a result.

New Acas Statutory Code of Practice

The Government has announced that these new measures will be supported by a new statutory Code of Practice on flexible working, which is being developed by Acas (to replace the existing 2014 Code) and will set out recommendations and details of best practices for employers. Acas has prepared a draft Code and will consult on it until 6 September 2023.

Acas says it aims to update the 2014 Code to reflect the upcoming changes in the Act and in light of the significant shift in flexible working and attitudes towards it post pandemic to ensure that its guidance remains relevant and helpful in today’s workplace.

As things stand, the new draft Code of Practice:

  • Seeks to encourage a more flexible approach to flexible working by encouraging employers to not reject flexible working requests by default and to instead engage in open-minded dialogue with employees.
  • Recommends that, as part of a reasonable consultation with the employee, a person with sufficient authority holds a formal meeting with them to consider their request and, where a request cannot be approved, discusses suitable alternatives that could work for the business and the employee.
  • Suggests that employers should set out, in writing and without unreasonable delay, the outcome of their decision and, where a request has been rejected, the business reasons relied upon and such additional information as is reasonable to help to explain their decision.
  • Recommends that employers should allow an appeal where a request has been rejected and provides guidance on the appeal process.
  • Extends the categories of those who can accompany an employee at a flexible working meeting to include trade union representatives (in addition to colleagues).

What should employers do now?

The Act isn’t in force yet, but employers should review their existing flexible working policies and processes to ensure that they meet these new standards by July 2024 (by which point the Government have indicated it will introduce secondary legislation to bring these new measures into force).

Updates could include establishing a process to formally meet with employees who issue requests or establishing templates to respond to requests that provide the recommended level of detail. The changes to statutory timeframes will also need to be implemented. For many employers, this will mean changes to policies and practices.

Employers should ensure they are prepared for an increased number of flexible working requests as a result of flexible working requests becoming a day-one right and also that they are prepared to discuss flexible working options as part of the recruitment process.

Flexible working has inevitably been an important issue for employees in recent years, and these developments (and the publicity around them) could increase employees’ awareness of and appetite for making these requests, particularly for employers who continue to increase office working post pandemic. The main criticism of the flexible working regime – that it lacks teeth because employers can reject requests on subjective grounds – remains. However, employers should be alive to the public support for greater dialogue around flexible working, more accessible and employee-friendly practices and a greater acceptance of requests, which has influenced this revised flexible working regime.

The ongoing consultation on the new Code of Practice on flexible working also provides employers with an opportunity to provide their views on the proposed guidance and practicalities of handling flexible working requests under the new Act. Employers with an inclination to do so can find the consultation documentation, and details of how to respond, online.