New flexible working rules coming into force

New flexible working rules are due to come into force on 1st April 2024. The Employment Relations (Flexible working) Act 2023 will mean major changes in how flexible working requests are handled in businesses. In this blog, we look at what it means for UK businesses.

The background to the new flexible working rules

In September 2021, the Government launched a consultation on making flexible working the default.  

This contained a series of proposals to reform flexible working legislation. The consultation outcome was published in December 2022. It confirmed that the Government would make the right to request flexible working apply from the first day of employment, thereby removing the current qualifying period of 26 weeks. 

The proposals covered: 

• making the right to request flexible working a day one right; 

• whether the eight business reasons for refusing a request all remain valid; 

• the administrative process underpinning the right to request flexible working; 

• requiring the employer to consider alternatives if the initial request is unworkable; 

• requesting a temporary arrangement; and 

• a future call for evidence on ad hoc and informal flexible working. 

On 5 December 2022, the Government confirmed its intention to take forward the following measures, either through the Employment Relations (Flexible Working) Bill or regulations where primary legislation is not required: 

• making the statutory right to request flexible working a day one right (ie removing the requirement for employees to have at least 26 weeks’ continuous service); 
• introducing a new requirement for employers to consult with the employee when they intend to reject their flexible working request; 
• allowing an employee to make two applications (rather than one) for a flexible pattern of work during any 12-month period; 
• requiring a decision period of two months in respect of a statutory flexible working request (rather than the current three); and 
• removing the existing requirement that the employee must explain what effect, if any, the change applied for would have on the employer and how that effect might be dealt with. 

Key Elements of New Flexible Working rights  

The below table lists the main changes in the new Flexible Working regulations.

Previous Flexi Working 

New Flexi Working – Employment Relations (Flexible Working) Act 2023. 

Can apply after 26-week qualifying period 

Can apply from first day of employment 

Cannot make more than one application during any period of 12 months 

Cannot make more than two applications during any period of 12 months 

Employee has to explain how the proposed change will impact the business

No longer a requirement to anticipate the impact of the change.

Can refuse without the employee being consulted about application 

Cannot refuse unless the employee has been consulted about the application 

Applications must be dealt with within 3 months 

Applications must be dealt with within 2 months 

Cannot make another application while another is ‘proceeding’* 

The good news for business is that it is possible to agree flexible working informally without having to use the Statutory procedure. If the full procedure is followed, like with disciplinaries and grievances, businesses don’t need to follow the code but failure to do so will be taken into account by Employment Tribunals.

When are the new rules taking effect?

The rules come into force on 1st April 2024.

The new Flexible working rules significantly enhance employee rights in this area of employment law. Whilst we absolutely encourage employers to be as flexible as they can in this competitive job market, the right to request 2 changes per year could be administratively very burdensome for small businesses. Having said this, the requirement to consult is a positive change and we encourage employers to be open minded where requests are made. Whilst the new flexible working rules do not automatically entitle employees to work any pattern they want, employers may need to be prepared to compromise during the new consultation process. Between 2 and 4 million employees leave their role each year due to lack of flexibility. These rules may prove to be beneficial for employers in the long run.

What could the new Flexible Working rules mean for business

The new Flexible working rules significantly enhance employee rights in this area of employment law. Whilst we absolutely encourage employers to be as flexible as they can in this competitive job market, the right to request 2 changes per year could be administratively very burdensome for small businesses. Having said this, the requirement to consult is a positive change and we encourage employers to be open minded where requests are made. Whilst the new flexible working rules do not automatically entitle employees to work any pattern they want, employers may need to be prepared to compromise during the new consultation process. Between 2 and 4 million employees leave their role each year due to lack of flexibility. These rules may prove to be beneficial for employers in the long run.