New rules on flexible working

At long, long last, the government has finally “delivered” on its promises about introducing legislation on flexible working. However, as with so many things, it’s not what was originally mooted. In the Queen’s Speech in 2019, the government talked about making flexible working the default and it being a day 1 right (i.e. with no qualifying period). Neither of these things appear in the Employment Relations (Flexible Working) Act 2023 which is now awaiting the Royal Assent.

So, what is new?

• Employees will now be able to make two flexible working requests in any 12-month period. It was previously one.
• An employer has to deal with a request within 2 months of receipt of a request if no extension is agreed. It is currently 3 months.
• An employer has to consult with an employee before a request is refused but there is no indication of what consultation means in this context.
• Employees will no longer have to explain how problems in implementing the request can be dealt with.

…and what’s missing?

• Flexible working is not the default – the government abandoned that some time ago.
• It’s not a day 1 right. An employee still has to have 26 weeks service to make an application. The government has talked about bringing in day 1 right status by secondary legislation but there is no sign of that.
• There is no right of appeal.
• The Act can best be described as minor tinkering with the existing regime rather than making a substantive change and frankly doesn’t really do much to advance the cause of flexible working as the default.