Employment Relations (Flexible Working) Act 2023

The Employment Relations (Flexible Working) Act 2023 represents a significant development in UK employment law, reshaping how flexible working requests must be handled by employers. While flexible working has been part of the statutory framework for many years, the 2023 Act moves it firmly into the mainstream of employment rights by strengthening employee entitlements and increasing procedural obligations on employers.

For business owners and HR professionals, the Act is not simply a policy signal but a compliance issue. It alters when employees can make requests, how employers must respond, and the standards against which decisions may be scrutinised in grievances or Employment Tribunal claims. Failure to understand and apply the new framework correctly exposes employers to legal, employee relations, and reputational risk.

It is also important to be clear on what has changed. The reforms strengthen the statutory right to request flexible working. They do not create an automatic right for employees to work flexibly in any particular way. Employers retain the ability to refuse requests where lawful grounds apply, but they must do so through a fair, timely, consultative, and evidence-based process.

What this article is about
This article explains what the Employment Relations (Flexible Working) Act 2023 does, how it changes the law on flexible working requests, and what employers must do in practice to remain compliant. It focuses on legal duties, refusal grounds, consultation requirements, and the practical HR implications for UK businesses of all sizes.

Section A: Overview of the Employment Relations (Flexible Working) Act 2023

The Employment Relations (Flexible Working) Act 2023 is primary legislation that amends the statutory right to request flexible working under the Employment Rights Act 1996. Its purpose is to make flexible working more accessible, more responsive, and more embedded into everyday employment practices, rather than a benefit reserved for long-serving employees or exceptional circumstances.

The Act itself does not operate in isolation. Its provisions are brought into force and given practical effect through secondary legislation, most notably the Flexible Working (Amendment) Regulations 2023, which took effect from 6 April 2024. In addition, ACAS guidance and the ACAS Code of Practice support employers in applying the statutory framework in a consistent and fair way. Together, these measures represent a coordinated reform of the flexible working regime, expanding employee rights while increasing procedural expectations on employers.

From an employer’s perspective, the Act is best understood as a shift in emphasis rather than a removal of managerial control. Employers retain the right to refuse flexible working requests for legitimate business reasons. However, the process by which requests are handled is now more tightly regulated, and the margin for procedural error is narrower. Consultation, timeliness, and reasoned decision-making are no longer best practice alone; they are legal requirements under the amended statutory framework.

The policy background to the Act reflects broader labour market trends, including increased remote working, changing employee expectations around work-life balance, and the normalisation of flexible arrangements following the COVID-19 pandemic. Parliament’s intention was to remove structural barriers that previously discouraged employees from making requests and to ensure employers engage constructively with flexibility at an earlier stage of employment.

Section A summary
The Employment Relations (Flexible Working) Act 2023 strengthens the statutory framework for flexible working by expanding employee access to requests and increasing employer procedural duties. While refusal rights remain, employers must now approach flexible working as a core employment law obligation rather than a discretionary workplace benefit.

Section B: Key Legal Changes Introduced by the Employment Relations (Flexible Working) Act 2023

The Employment Relations (Flexible Working) Act 2023 introduces a series of interconnected changes that materially alter how flexible working requests must be managed by employers. These changes are designed to lower the threshold for making a request while increasing the procedural safeguards around how employers respond. For HR teams and business owners, understanding these changes in detail is critical to avoiding compliance failures.

One of the most significant changes is the introduction of a day-one right to request flexible working. Employees are no longer required to complete 26 weeks’ continuous service before submitting a request. This means new starters can raise flexible working requests from the start of employment, including during probationary periods. Employers must therefore be prepared to assess and respond to flexible working considerations as part of early employment management, rather than treating flexibility as a post-probation benefit.

The Act also removes the requirement for employees to explain the anticipated effect of their flexible working request on the employer’s business. Previously, employees were required to set out how any negative impact might be dealt with. That burden now rests squarely with the employer. In practice, this means employers must carry out their own assessment of operational impact, feasibility, and business risk rather than relying on the content of the employee’s application.

Another key change is the increase in the number of statutory flexible working requests an employee may make within a 12-month period. Employees are now entitled to make up to two requests in any 12-month timeframe. This has implications for workforce planning and management time, particularly where multiple employees submit overlapping or competing requests. Employers should anticipate more frequent engagement with flexible working issues and ensure managers are trained to handle requests consistently.

The statutory decision-making timeframe has also been reduced. Employers must now deal with flexible working requests, including any appeal, within two months unless an extension is agreed with the employee. This compressed timeline requires tighter internal processes and clear ownership of decision-making. Delays caused by lack of management availability, poor record-keeping, or informal handling of requests are more likely to result in procedural breaches.

Crucially, the reforms introduce a mandatory consultation expectation before an employer can refuse a flexible working request. Employers must engage in a meaningful discussion with the employee to explore the request and consider whether any alternatives or compromises are possible. This consultation should take place before a final decision is made and should reflect the amended statutory framework and ACAS guidance. A failure to consult is capable of rendering an otherwise lawful refusal procedurally flawed.

Taken together, these changes mark a clear shift away from a form-driven approach to flexible working and towards a more substantive assessment process. Employers are expected to demonstrate engagement, consideration, and justification, rather than relying on standardised refusals or cursory responses.

Section B summary
The Employment Relations (Flexible Working) Act 2023 expands employee access to flexible working and increases employer obligations around assessment, consultation, and timing. While employers retain refusal rights, the legal risk now lies primarily in how decisions are reached and documented, rather than in the outcome alone.

Section C: Employer Duties and Lawful Refusal Grounds

Although the Employment Relations (Flexible Working) Act 2023 strengthens employee rights, it does not remove an employer’s ability to refuse a flexible working request. What the reforms do is raise the standard of process that employers must follow when reaching a decision. For business owners and HR professionals, the legal focus is now firmly on reasonableness, consultation, and evidence.

Employers remain under a statutory duty to deal with flexible working requests in a reasonable manner. This duty applies to every stage of the process, from acknowledging the request through to the final decision and any appeal. Reasonableness is not exhaustively defined in legislation, but in practice it requires employers to properly consider the request, assess its impact on the business, and avoid pre-determined or blanket refusals.

A central procedural duty under the amended framework is the obligation to consult with the employee before refusing a request. Consultation must be meaningful rather than superficial. Employers should discuss the request with the employee, explore the reasons for it, and consider whether adjustments, alternatives, or trial arrangements could address business concerns. Simply holding a meeting without engaging with the substance of the request is unlikely to satisfy this requirement.

Despite these procedural duties, employers may still lawfully refuse a flexible working request for one or more of the eight statutory business grounds set out in the Employment Rights Act 1996. These include the burden of additional costs, a detrimental effect on the ability to meet customer demand, an inability to reorganise work among existing staff, an inability to recruit additional staff, a detrimental impact on quality or performance, insufficiency of work during the periods the employee proposes to work, and planned structural changes.

To rely on any of these grounds, employers must be able to demonstrate that the reason genuinely applies to the specific request under consideration. Generic statements, assumptions, or reliance on historic practice are unlikely to be sufficient if challenged. Employers should be prepared to explain how the refusal ground applies in practice and why alternative arrangements were not viable in the circumstances.

Effective record-keeping is therefore a critical aspect of compliance. Employers should retain written records of the request, consultation discussions, any impact assessments carried out, and the rationale for the decision reached. These records may be required to respond to grievances, ACAS early conciliation, or an Employment Tribunal claim.

If an employer fails to comply with the statutory procedure, including consultation and time limits, an employee may bring a claim to the Employment Tribunal. Compensation is capped at eight weeks’ pay, subject to the statutory weekly pay limit. However, procedural failures can also have wider consequences for employee relations, management credibility, and organisational reputation.

Section C summary
Employers retain the right to refuse flexible working requests on statutory business grounds, but only where decisions are reached through a reasonable, consultative, and evidence-based process. Under the current framework, procedural compliance is central to managing legal and employee relations risk.

Section D: Practical HR and Business Implications

The Employment Relations (Flexible Working) Act 2023 requires employers to move beyond reactive handling of flexible working requests and adopt a more structured, forward-looking approach. For HR teams and business owners, this means embedding flexible working considerations into policies, management training, and workforce planning rather than treating requests as isolated events.

One immediate implication is the need to review and update flexible working policies. Policies should reflect the day-one right to request flexible working, the increased number of requests permitted each year, and the shortened decision-making timeframe. Outdated references to qualifying service or longer response periods risk causing procedural breaches if followed in practice. Clear policy wording also helps manage employee expectations and supports consistent decision-making across the organisation.

Manager capability is another critical factor. Line managers are often the first point of contact for flexible working discussions, yet many lack confidence in handling requests lawfully and fairly. Employers should ensure managers understand the consultation requirement, the statutory refusal grounds, and the importance of documenting decisions. Inconsistent or informal handling of requests increases the risk of grievances and discrimination claims, particularly where flexible working overlaps with protected characteristics such as sex, disability, or age.

The increased frequency of flexible working requests may also create operational challenges, especially where multiple employees seek similar working patterns. Employers should be prepared to assess competing requests objectively and transparently. This may involve considering business-wide solutions, rotating arrangements, or trial periods rather than default refusals. Failure to manage competing requests consistently can undermine trust and expose employers to allegations of unfair treatment.

From a risk management perspective, flexible working requests are increasingly linked to wider employee relations issues. Poor handling can trigger grievances, ACAS early conciliation, or Employment Tribunal claims, even where the underlying business reasons are sound. Employers should therefore treat flexible working decisions as part of their broader employee relations strategy rather than a narrow compliance exercise.

Finally, employers should recognise that flexible working is now a core feature of the employment relationship. While not every request will be workable, the expectation is that employers engage constructively and can evidence their reasoning. Organisations that approach flexible working strategically are better placed to retain staff, manage disputes, and demonstrate fair treatment across the workforce.

Section D summary
The practical impact of the Employment Relations (Flexible Working) Act 2023 lies in policy alignment, manager training, and consistent decision-making. Employers that embed flexible working into their HR frameworks are better positioned to manage legal risk and maintain effective employee relations.

FAQs

Is flexible working now an automatic right for employees?
No. The Employment Relations (Flexible Working) Act 2023 strengthens the day-one right to request flexible working, not a right to work flexibly automatically. Employers may still refuse requests where one or more statutory business grounds apply, provided the request is handled reasonably and consultation takes place before refusal.

Can employers still refuse flexible working requests?
Yes. Employers can refuse a flexible working request on one or more of the statutory grounds set out in the Employment Rights Act 1996. However, refusals must be supported by a genuine business rationale, preceded by consultation, and communicated within the statutory timeframe.

What happens if an employer fails to consult before refusing a request?
Failure to consult before refusing a flexible working request is a breach of the statutory procedure. An employee may bring a claim to the Employment Tribunal, even if the employer could otherwise have relied on a valid refusal ground. Compensation is capped, but procedural failures can also damage employee relations and employer reputation.

How many flexible working requests can an employee make in a year?
Employees are entitled to make up to two statutory flexible working requests in any 12-month period. Employers should ensure internal tracking systems are in place to monitor request frequency and response deadlines.

Does the Act apply to small businesses as well as large employers?
Yes. The Employment Relations (Flexible Working) Act 2023 applies to all UK employers, regardless of size. While operational impacts may be more acute for smaller organisations, the same procedural requirements apply and employers should document the decision-making process carefully.

Can flexible working requests be made during probation?
Yes. Because the right to request flexible working applies from day one of employment, employees can make requests during probationary periods. Employers should ensure probation policies and management practices are aligned with this legal position.

Conclusion

The Employment Relations (Flexible Working) Act 2023 marks a clear shift in how flexible working is positioned within UK employment law. Flexible working is no longer a peripheral benefit considered after a period of service, but a core statutory right that employers must engage with from the outset of the employment relationship.

For employers, the key change is not the loss of control over working arrangements, but the heightened expectation of process. Decisions must be timely, consultative, and supported by evidence. Employers that fail to adapt policies, train managers, or document decisions risk procedural breaches even where their underlying business reasons are legitimate.

By approaching flexible working strategically, rather than defensively, employers can reduce legal risk, support workforce stability, and maintain constructive employee relations. Compliance with the Act should therefore be seen as an integral part of effective people management, not simply a legislative obligation.

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