Scotland: Employment Relations (Flexible Working) Act 2023: What will the new flexible working rules mean for your business?
The Employment Relations (Flexible Working) Act 2023 (“the Act”) has completed its passage through Parliament. The Act now only requires Royal Assent before becoming an Act of Parliament. The Act will make various changes to the regime for flexible working currently contained within the Employment Rights Act 1996.
The Employment Relations (Flexible Working) Bill was introduced as a Private Member’s Bill in the House of Commons by Labour MP, Yasmin Qureshi. The rationale behind the Bill was that if more people could request flexible working, more people could enter the workforce. It would also help those already in employment to balance work and home life.
The UK Government supported the Bill, following previous consultation on similar proposals in 2021, with the Bill completing its House of Common stages in February 2023.
What will the Act do?
The Act makes the following changes to the current flexible working regime:
- Removes the requirement for employee explanation: The existing requirement for an employee to explain in their application the effect of their flexible working request on the employer will be removed.
- Revision of application frequency: The Act enables employees to make two statutory requests for flexible working in the same 12-month period (an increase from the current one statutory request within the same 12-month period).
- Mandatory consultation: Employers must now consult with an employee before rejecting any flexible working request. An employee may make a complaint to an Employment Tribunal if their employer does not consult with them prior to rejecting their statutory request for flexible working. There is no requirement that consultation with the employee is substantive and there is no minimum standard of consultation set out within the Act.
- Reduced decision period: Employers must deal with a flexible working request within two months of receipt of a request if no extension is agree (which is reduced from the current three-month timescale).
What does the Act not do?
Interestingly, the Act does not make flexible working a ‘day one’ right, despite previous indications that the UK Government intended to do so. Employees still need to have 26 weeks’ continuous service before they are able to make a flexible working request. The Government will however seek to create ‘day one’ employment rights through separate legislation.
The Act also does not make it a requirement of the process for employers to offer a right of appeal if a flexible working request is rejected (however it is recommended in the Acas Code of Practice on Flexible Working).
What else should employers be aware of?
Employers should also be aware of the guidance in the Acas Code of Practice on flexible working requests (“Code of Practice”) which will also be taken into account by Employment Tribunals when considering relevant cases. It should be noted that ACAS has yet to update their Code of Practice in line with the changes made by the Act. That being said, Acas’ consultation on updating the Code of Practice closes on 6 September 2023, and so changes are expected thereafter.
This article is not and should not be taken as legal advice, it is for general information only.
This article was co-written by Daniel Cormack, Trainee Solicitor.