Policy Explainer Changes to the right to request flexible working 

It is important to note that this change does not constitute a legal right to flexible working from day one of employment, but a right to submit a request on day one.

Acas will be publishing an updated version of its statutory Code of Practice on handling requests for flexible working to reflect the upcoming changes to the flexible working regime. It will cover information on who should be permitted to accompany an employee to meetings to discuss a flexible working request, as well as the necessity for clarity regarding the reasons for rejecting a request. The updated Code is expected to come into force in April 2024, subject to parliamentary approval.

What is and isn’t changing?

In addition to making the right to request flexible working a day one employment right, The Flexible Working (Amendment) Regulations 2023 will:

• Allow employees to make two flexible working applications every 12 months (up from one at present)

• Require employers to respond to flexible working requests within 2 months (down from three months at present)

• Remove the requirement for employees to explain what effect they think their flexible working request will have on the employer

• Require employers to consult with the employee before refusing their flexible working application. While there is no minimum standard of consultation given in the law, this requirement should encourage collaboration.

However, employers will still be able to assess requests based on business needs and operational feasibility. The reasons that employers can give for rejecting a request will remain the same:

1. The burden of additional costs
2. An inability to reorganise work amongst existing staff
3. An inability to recruit additional staff
4. A detrimental impact on quality
5. A detrimental impact on performance
6. Detrimental effect on ability to meet customer demand
7. Insufficient work for the periods the employee proposes to work
8. Planned structural changes to the business

How employers can prepare for the change

Ahead of the changes, employers should consider updating internal policies to align with the new rules and the principles outlined in Acas’ draft updated Code.

These changes will not require employers to advertise jobs as having the potential for flexible working, but detailing any flexible working options available in a job advertisement can both increase the appeal of the job and manage expectations before an employee takes up a position.

Informally discussing flexible working arrangements before an employee’s contract commences can also decrease the chance that an employee will renege on an employment offer and reduce the need for a formal request.