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What the Flexible Working Act means – and what it doesn’t

Two significant new acts have come into force for employers and employees in the UK. One is The Employment Relations (Flexible Working) Act 2023; the other is The Carer’s Leave Act 2023.

We responded to the Government consultations on both pieces of legislation, drawing on the views of our Members and Partners.

For this blog, we’ll be looking at the first of these two pieces of legislation, the Employment Relations (Flexible Working) Act 2023, what it means for employers and employees. From here, we’ll be referring to the Act as the Flexible Working Act for brevity.

What does the Act change?

The key changes to statutory flexible working, which you need to ensure your own policies cover, are:

  • Employees are now legally entitled to request a change to their working patterns from their first day of employment (previously they would have to have been in their current role for 26 weeks).
  • Employees may now make 2 such requests in any 12-month period (up from one previously).
  • Employers must respond to an employee’s request within 2 months (down from 3 months previously).

We should note that the changes do not explicitly mean “a right to flexible working” but a right to request a change. Nor does the Act obligate the employer to grant the specific request. Employers do, however, need to discuss the request with the employee, and what can be done instead.

Five key definitions for employers

The first 3 things to remember are the 3 main types of flexible working:

  • Statutory flexible working is the government-set policy governing how employees can request changes to ways of working and how employers should respond to these requests. This is what changed on 6 April (see above).
  • Non-statutory flexible working is an employer-set policy. This policy will only need to change if it doesn’t comply with the government-set policy.
  • Flexible working as a reasonable adjustment is governed by different legal requirements. It is unaffected by changes on 6 April, but we’re taking this opportunity to make sure all employers know the difference in process.

Within statutory and non-statutory there two more types: regular flexible working, and ad-hoc flexible working. Both can be used with either a statutory or non-statutory arrangement.

  • Regular flexible working: where either in a statutory or in a non-statutory arrangement, the employee’s flexible working is a regular, consistent change. An example might be an employee changing their hours from 9 am – 5 pm to 8 am – 3 pm.
  • Ad-hoc flexible working: where an employee might have a disability, or chronic pain, for example, and employee adjusts their hours according to need, non-regularly. The employee will not know in advance when they need to make that change. An example might be an employee coming in later when they need to because of therapy, treatment or medication side effects.

Working flexibly – not quite the same as flexible working

Working flexibly is something different again.

Because things in life change unpredictably, inclusive employers allow employees to work as and when it suits them. Employees might be able to go to an appointment, for example, without requesting to do so.

This is more about culture than rules; in flexible cultures, flexibility is the norm, and this removes the need to make either statutory or non-statutory requests. Of course, even in organisations where employees can work flexibly, this might not be universal: it might be allowed in some roles but be unreasonable in other roles.

Working flexibly, being able to work as you like so long as job gets done, is different to having to make a flexible working request.

Conclusion

Let’s recap. The key things for employers to remember around flexible working are the differences between statutory and non-statutory flexible working, and then the differences between regular and ad-hoc flexible working.

But employers should not worry about these definitions too much. The key thing is making sure the organisation has a policy which is compliant with the new statutory requirements (outlined at the start of this blog), but also lets employees know what they can or need to do when. Employers should also make this policy clear to the workforce.

But what about adjustments?

A final word on adjustments. If someone asks to work flexibly because of a disability, a flexible working policy (statutory or non-statutory) should not be used. Instead this should be considered as an adjustment, and therefore managers should be using your workplace adjustments policy.

Code of practice

Acas have produced a code of practice on requests for flexible working.

Although it’s not mandatory for employers to abide by this code, it is expected that they will use it as guidance, and any potential employment tribunal will expect them to have used the guidance.

It is important to remember this guidance is about statutory flexible working. This means that it doesn’t cover flexible working as a reasonable adjustment, and you can also have your own non-statutory policy which goes above the statutory requirements.

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