updated July 28th 2023

The Employment Relations (Flexible Working) Act 2023 has completed its passage through Parliament and now has Royal Assent (27th July). There are several things it changes about the current flexible working regime and several (possible more notable) things that it does not. In terms of what it does change:

• Employees will now be able to make two flexible working requests in any 12 month period.
• Requests have to be dealt-with by employers within 2 months of receipt of a request if no extension is agreed.
• Employers are not able to refuse a request until they have ‘consulted’ with the employee (although there is no legislative de minimis requirement of what that ‘consultation’ needs to include).
• Employees will no longer, in their application, have to explain what effect the employee thinks agreeing to the request would have and how any such effect might be dealt with.

In terms of what it doesn’t do:

• It doesn’t make flexible working a ‘Day 1 right’. Employees still need to have 26 week’s service before they are able to make a request. The Government has indicated that it will create Day 1 employment rights through secondary legislation – although none has appeared as yet. The issue is not covered in the Act.
• It doesn’t require employers to offer a right of appeal if a flexible working request is rejected. The offer of a right of appeal is recommended in the ACAS Code of Practice on Flexible Working. These changes have not made it a requirement of the process.

There is no requirement that consultation with the employee is substantive or covers the options available. Indeed, there is no minimum standard of consultation set out at all.

What is flexible:

This could be your start time, your finish times, your working days, your hours on a set day, your lunch break.

It could be to have a longer lunch on a wednesday for a PT session in the gym. It could be a early finish on a friday to pick up the kids.  It could be starting half hour earlier then others in the team to avoid traffic.

What does a company need to consider?

A company will need to consider the impact on the business and customers. For example if you are in a call centre and the advertised opening hours are 8am, you can not start at 7am however if most staff start at 9am, you could request 8am.

What areas would not be included?

Location of the job. This is flexible working (ie start finish times). This is not about the location of the job. Therefore remote working would not be included, as this is a location not flexibility. The same as if your allocated to the Manchester branch, this would not change to being based in the chester branch a day week. Again, that is location ad a different subject

Home working or hybrid is not included,  this is not flexible this is place of work. See our guide about hybrid/remote/remoteonly working. Offering flexible working means the days, the start times, finish times, the breaks etc etc. If you have a hybrid option, you still need a flexible request to change any hours etc. For many companies who offer hybrid, the expectation is you still clock on and off at the same time and you have a suitable space to work in. You would still require child care for example with hybrid, so if this is a issue, you will need a flexible request about the finishing times.

Changing the opening hours of the business is also not included. If the company is Mon-Fri, you can not ask for a wednesday off ad work a saturday if the business is closed on a Saturday.

what might be classed as flexible requests;

• later finish one day of the week to drop kids off at school
• early start a day a week to finish early
• longer days on some days for a shorter day another day
• longer lunch to go to the gym on set days and work later 
• early finish a day a week to pick up the kids from child minder
• unpaid leave during some school holidays or part time hours in some school holidays
• shorter lunch break to finish early
• extra breaks to make calls to overseas family members and work later instead