Flexible working rights to change…

The original right to request flexible working was introduced by section 47 of the Employment Act 2022.  Since then, successive Governments have extended the right to wider categories of employees and since 2014 all employees have had the right to make a formal request to change their terms and conditions and work more flexibly.  However, this right is now changing as we await the introduction of the Employment Relations (Flexible Working) Act 2023, previously announced by the Government in December 2022 as part of its measures to “make flexibly working the default”.

As a reminder, the current law (under section 80F of the Employment Rights Act 1996) allows an employee with at least 26 weeks’ continuous service and who has not made a statutory request for flexible working during the previous twelve months, to make an application or request to their employer for flexible working, being a change in their terms and conditions relating to:

• how many hours they are required to work;
• when they are required to work; and/or
• where, as between their home and their employer’s place of business, that work is done.

Under the new legislation, which now simply awaits the Royal Assent, several aspects of the existing statutory right will change, including:

• the right to make two flexible working requests in any 12-month period.
• the requirement on employers to deal with any such request within 2 months of its receipt unless an extension is agreed.
• a requirement to consult with the employee before any request is refused.
• removing the requirement for the employee to have to explain in their application what effect the employee thinks agreeing to the request would have and how any such effect might be addressed and overcome.

There will be no change to the requirement to have been employed continuously for at least 26 weeks before an application can be made despite the Government’s original suggestion that this would also be removed. That said, employers should be aware that it is still possible for an employee to make a request to work flexibly outside of the statutory regime described above and any such request should still be considered carefully by the employer in case rejecting such a request might give rise to a claim of indirect discrimination and/or a breach of the implied term of trust and confidence.

Employers may also already have their own flexible working policies in place which they should have regard to when determining an application and this newly anticipated change in the law is a prompt to employers to start to review these policies and procedures.