Flexible working laws get Royal Assent

New flexible working legislation has been given Royal Assent, with the Government confirming that secondary legislation granting a day one right to request flexible working will be in place when the law is enacted.

The Employment Relations (Flexible Working) Act 2023, which achieved Royal Assent last Thursday, does not include the day one right to request flexible working [rather than after 26 weeks in a job] as it currently stands. It does, however, contain other positive changes, including the right to request flexible working twice a year instead of once and the right to be consulted before any refusal is given. Employers also have to respond within two rather than three months.

The Government says it expects the measures in the Act and the secondary legislation to come into force in approximately a year, to give employers time to prepare for the changes. The measures in the Act will be supported by a statutory Code of Practice. This Code is being developed by Acas and is currently under consultation until 6 September.

Andrea London, a partner at Winckworth Sherwood, said that there are some concerns around the consultation element of the legislation, given the consultation period has no minimum time frame, no requirement that it is a substantive process and no detail about what it has to include. She said, “It appears to be entirely open for employers to determine the nature, length and content of the consultation.”

There also continues to be no statutory right of appeal if a request is rejected.

In a joint statement published on Friday, signatories including the TUC, Fawcett Society, Women’s Budget Group and Timewise, among others, warned that the legislation does not go far enough.

The statement reads: ‘’Whilst this is an important step, the government must go further. Mums, dads, disabled people (including those with Long Covid), carers and older workers are just some of the groups that we know are more likely to need flexibility to get into work, stay and progress. And flexible working is important for everyone to achieve better work life balance and make time for life outside work.

“But even with the new legislation, those who need flexibility to work will be forced to ask what arrangements are available in the recruitment process. We know many applicants don’t mention flexible working due to justified fears of discrimination or rejection.’’

Mandy Garner, editor of workingmums.co.uk, said: “While we welcome the changes contained in the legislation regarding flexible working, the law is way behind what the best employers are offering. Despite a small number of employers expressing concerns about the new legislation, it is only a right to request, with very broad reasons open to employers who wish to turn down a request. We believe that, if the Government truly wants to address the labour shortages for the long term, it should be doing much more to embed flexible working across the workforce.”

WM People has spoken to lawyers about the potential impact of the Act, when it eventually does contain the day one right to request, and to employment experts. Advice on negotiating flexible working can be found here. Timewise anticipates a big demand for a day one right to request when it is passed.

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