Flexible Working Act likely to come into force in summer 2024

The Employment Relations (Flexible Working) Act received Royal Assent on 20 July. It paves the way for the following changes (all of which will require a commencement order before being brought into effect):

• Employees will be able to make two statutory requests in any 12-month period instead of only one
• The waiting time for decisions to be made will be reduced from three to two months
• Removal of existing requirements that the employee must explain what effect the change applied for would have on the employer and how the effect might be dealt with
• Employers cannot refuse an application unless the employee has been consulted about it.

The Act does not implement the Government’s long-standing promise to make the right to request a “day one” right, by removing the 26 week qualifying period. That is the most significant change of all, but, unlike the other changes, does not require primary legislation to implement. However, in the press release announcing that the Act had received Royal Assent, the Government repeated its commitment to remove the qualifying period, so we expect the necessary regulations to be made before the other changes are brought into effect.

The Government’s press release states that it expects the measures in the Act and associated regulations to come into effect “approximately a year after Royal Assent”.

While the Act and associated regulations will significantly expand the numbers of employees who qualify for the right, there are still some additional measures that the Government could have implemented, which would arguably have moved it closer to the Conservative Party's 2019 manifesto commitment to make flexible working "the default”. These include:

• Extending the right to request to workers as well as employees
• Setting minimum standards for the consultation that employers will be required to undertake before refusing a request
• Providing for a right of appeal (this is expected as part of best practice, but is not a legal requirement).

In other related developments, ACAS has published a consultation document about the necessary revisions to its flexible working code of practice. The Government has also launched a call for evidence on “non-statutory” flexible working – ie arrangements that employers enter into with their workforce which are either more informal than the statutory regime, or go further then the minimum requirements imposed by law. This call for evidence will run until 7 November.