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The Employment Relations (Flexible Working) Act 2023

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The Employment Relations (Flexible Working) Act 2023 has completed its passage through Parliament and now awaits Royal Assent. There are several things it changes about the current flexible working regime and several (possible more notable) things that it does not. In terms of what it does change:

- Employees will now be able to make two flexible working requests in any 12 month period.

- Requests have to be dealt-with by employers within 2 months of receipt of a request if no extension is agreed.

- Employers are not able to refuse a request until they have ‘consulted’ with the employee (although there is no legislative de minimis requirement of what that ‘consultation’ needs to include).

- Employees will no longer, in their application, have to explain what effect the employee thinks agreeing to the request would have and how any such effect might be dealt with.

In terms of what it doesn’t do:

- It doesn’t make flexible working a ‘Day 1 right’. Employees still need to have 26 week’s service before they are able to make a request. The Government has indicated that it will create Day 1 employment rights through secondary legislation – although none has appeared as yet. The issue is not covered in the Act.

- It doesn’t require employers to offer a right of appeal if a flexible working request is rejected. The offer of a right of appeal is recommended in the ACAS Code of Practice on Flexible Working. These changes have not made it a requirement of the process.

- There is no requirement that consultation with the employee is substantive or covers the options available. Indeed, there is no minimum standard of consultation set out at all.