Right to request flexible working: what has changed?

Amendments to the statutory process for making and responding to flexible working requests came into force on 6 April 2024. What do employers need to be aware of?

The Employment Relations (Flexible Working) Act 2023

The Employment Relations (Flexible Working) Act 2023 became law on 6 April 2024, amending the statutory process for making and responding to flexible working requests. The Act stems from a significant shift in the perception of flexible working. This is put down largely to the change in working practices during and since the Covid-19 pandemic, advances in technology, and the drive for a more diverse workforce.

What has changed?

For requests made on or after 6 April 2024:

Employees can request flexible working from 'day one' of employment (rather than needing 26 weeks' continuous service).
It is possible to make up to two statutory requests in any 12-month period (rather than just one). Any requests made before 6 April 2024 will count towards this maximum.
Employees no longer need to explain what effect they think the change will have on the business and how that might be dealt with.
The time limit for responding to a request (including any appeal) is reduced from three to two months.
Employers cannot refuse a request unless they have 'consulted' with the employee - the employee should be invited to a meeting to discuss their request.

What has stayed the same?

Employees can request temporary or permanent changes to their working hours, working times or work location.
In order to fall within the statutory regime, the employee's request must specifically state that it is a statutory request for flexible working.
Employers must deal with flexible working requests in a 'reasonable manner' (taking the ACAS code into account – see below).
There is still no right to work flexibly - it is possible to refuse a flexible working request for one of the eight statutory business reasons.
There is no right of appeal against any decision to reject a flexible working application (although this is something recommended as good practice in the ACAS code).
There is still a risk of discrimination claims when turning down a flexible working request (for example indirect sex discrimination or failure to make reasonable adjustments).

ACAS code of practice on requests for flexible working

A new ACAS code of practice on handling requests for flexible working was also introduced on 6 April 2024. The previous code was published in 2014 so, as well as incorporating the legislative changes, the update seeks to bring it in line with current best practice and 'encourage a more positive approach to flexible working'. Statutory codes of practice are not legally binding, but they are taken into account by courts and employment tribunals when considering relevant cases.

Some of our key takeaways from the updated code are:

The strengthening of the existing good practice principles. For example, although there is no statutory right to be accompanied, the code states that it would be good practice to allow employees to bring a work colleague, trade union representative or official employed by a trade union to a meeting to discuss flexible working. The code also advises that dealing with requests in a 'reasonable manner' includes carefully assessing the effect of the requested change for both the employer and employee.
The need for transparency and open dialogue throughout the process. If a request is going to be refused the code suggests holding a meeting without unreasonable delay, and states that the written decision should contain both the relevant business reason for the refusal and any additional information which is reasonable to help explain the decision.

What does this mean in practice?

If not already done, employers should review and adapt policies and processes to (i) make the right to request a day one right; (ii) meet the shortened deadline for responding; and (ii) build in the consultation stage if they are considering refusing a request. Also think about whether to make any changes to reflect the best practice principles set out in the ACAS code (e.g. a right of appeal). Ensure that line managers are aware of the new processes and time-frames.

The combination of the Act, the new ACAS code and last year's call for evidence on non-statutory flexible working reflects a bigger picture – an expectation that employers will be more adaptable to flexible working. There is increasing recognition of the value placed on flexible working by the workforce and of its benefits for recruitment, diversity, and productivity.

If you would like to discuss the impact of the changes, or flexible working in general, please get in touch with the Brodies Employment and Immigration team.

Users of Workbox by Brodies, our award-winning HR and employment law site, will find updated guidance and letters and a new flexible working policy: