Employment Relations (Flexible Working) Act 2023

The Employment Relations (Flexible Working) Act 2023 (the “Act”) has successfully passed through parliament, receiving Royal Assent on 20 July 2023. The Act was introduced in response to the rapid change in working habits brought about by the COVID-19 outbreak, which included a large portion of employees in the UK having to work from home.

The Office for National Statistics reported that in February 2022, 84% of workers that had to work at home due to COVID-19 expected to carry out work on a hybrid basis going forward. It is therefore imperative that employers consider how the Act may impact their business’ operations and policies in the near future.

Overview of the Employment Relations Act

The main purpose of the Act is to allow employees to make flexible working requests (“FWR”) more easily. Although far from granting an absolute right to work flexibly, the Act aims to cultivate discussion between employers and employees regarding how best to approach flexible working. As different industries have different needs, the approach parliament has taken is to avoid a one-size-fits-all methodology when proposing reform.

A summary of the changes can be found in the table below. An implementation date is not yet confirmed.

 

	Current law	Reforms
For how long must an employee be in continuous employment before they can make a FWR?	26 weeks	26 weeks
What is the number of FWRs an employee can make in any given 12-month period?	One	Two
How long do employers have to respond to an employee’s FWR?	Three months	Two months
Does the employee have to be consulted by their employer before the latter refuses a FWR?	No	Yes
Is there a requirement for the employee to explain the effects that flexible working will have on the employer and how this might be mitigated?	Yes	No

 

It was also proposed that employees be granted a day-one right to make a FWR. However, the Act contains no provision to that effect. Despite this, the government have said that it is the intention to remove the 26 week qualifying period.

Employers should also remember that they are still under a duty to deal with applications reasonably and within the prescribed time frames. Additionally, if an employer does decide to reject the application, they can only do so while relying on one of the eight statutory grounds.

As the position regarding appeals and tribunal complaints remains unchanged, employers should insist on following the statutory procedure to minimise the chances of a claim being brought against them.ACAS is also in the process of updating its Code of Practice to reflect these reforms. This process includes a consultation period where employers are encouraged to engage with ACAS and give feedback on the draft of the updated code. The consultation period is currently ongoing and is set to close on 6 September 2023

D&I and Talent Retention

The direction of travel for reforms in this area is clear. Both the government and employees are keen on making flexible working a core part of work culture in the years to come. Although it may seem that this puts more pressure on employers to keep up with the reforms, employers can use this as an opportunity for growth.

For example, the Institute for Employment Studies reported that flexible working often results in more engagement, which can lead to an 87% reduction in employee turnover. Hence, by employers going above and beyond the statutory requirements, they may be able to retain talent more effectively.

Flexible working also affords employees with carer responsibilities or disabilities the opportunity to fully engage with their work. As D&I continues to become a core consideration for corporate governance, flexible working is also likely to form a large part of this discussion. Employers may therefore be able to use these reforms to further increase diversity in their organisations and retain that talent in the long term.

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If you have any queries you would like to discuss regarding the Employment Relations Act, please contact a member of our Employment Law team.