Increased flexible working opportunities on the way.

The Employment Relations (Flexible Working) Bill recently passed through its final procedural stage and has made its was on to the law books.

The new law will:

• enable employees to make two flexible working requests in any 12-month period
• require employers to respond to requests within two months if no extension is agreed.
• require employers will not be able to refuse a request until they have ‘consulted’ with the employee over the request (this will be more than just holding a meeting)
• remove the requirement for employee to explain what effect they think agreeing to the request would have and how any such effect might be dealt with

Whilst it had been proposed that the right to request flexible working would be a day one right, rather than the current requirement of 26 weeks’ service, this is not contained within the Bill. The Government has indicated that it will create secondary legislation to introduce this as a day one right, however, there is nothing further on this currently.

The same eight statutory reasons that an employer can rely on to reject a request will remain the same.

In response to this Bill, Acas has launched a consultation on their proposed updates to the statutory code of practice on handling flexible working requests. The consultation launched on 12 July 2023 and closes on 6 September 2023.

The code incorporates the changes that are proposed by the Bill. It explains that an employee may have only one live request for flexible working with the same employer at any one time and states that a request is live unless any of the following apply;

• a decision on the request has been made by the employer
• the request is withdrawn
• an outcome to the request has been mutually agreed
• the statutory timeframe to respond has expired without a decision, withdrawal, or a mutually agreeable outcome.

The proposed statutory code of practice sets out the benefits that flexible working can bring to businesses, for example, it may help employers address labour and skills shortages and lead to more diverse and inclusive workplaces. It encourages businesses to build flexibility into job roles and advertise that they are open to talking about flexible working options. The consultation meetings about the requests should be approached by employers with an open mind and there should be clear communication throughout. The code also states that appeals should be offered proactively and if an employee makes a reasonable request to be accompanied at any meeting to discuss a flexible working request, the employer should allow them to be accompanied by either a fellow worker, trade union representative or an official employed by a trade union.

Given that tribunals consider whether statutory codes of practice have been followed and any such failure can increase awards payable by employers when a claim is successful, it will be important for employers to be aware of their obligations once the final statutory code of practice is in place.