New Flexible Working Code and draft Paternity Leave Regulations

Right to request flexible working: expanded scope and new Code

As we have previously reported, the current requirement for 26 weeks’ qualifying service in order to obtain the right to request flexible working will be abolished from 6 April 2024, so the right to request flexible working will become a ‘day one’ right – thereby immediately increasing the scope of the right to request (although note that it will still be a right to request, not a right to be granted, flexible working).

Employers will also soon be dealing with flexible working requests under a revised right to request flexible working, under the Employment Relations (Flexible Working) Act. When it comes into force, this Act will:

(i) remove the requirement for an employee to explain what the effect of a flexible working arrangement would be on the employer or how that might be dealt with;

(ii) increase the number of requests which employees can make to up to two requests within any 12-month period (currently only one request per year can be made);

(iii) prevent an employer from refusing a request without consulting the employee first; and(iv) reduce the time in which an employer must decide on the request from three to two months.

These changes are expected to come into force in July 2024, but some commentators have suggested that the implementation date could be brought forward to April 2024.

Ahead of the introduction of the new right to request flexible working, Acas has now published the final version of a new Code of Practice on dealing with flexible working requests. The new Code of Practice will come into effect at the same time as the revised flexible working request procedure set out above.

Compliance with the Code of Practice is not a legal requirement in itself, but Employment Tribunals will take it into account when deciding relevant cases.

Paternity/Adoption leave – new arrangements

As we previously reported in our 2023 Horizon Scan, the government intends to make a number of relatively small but important changes to the legal framework for paternity leave.

The government has now published the draft Paternity Leave (Amendment) Regulations 2024. If (as expected) the Regulations are passed as currently drafted, they will:

• come into force on 8 March 2024 and apply where the Expected Week of Childbirth is 6 April 2024 onwards
• allow employees to choose between taking two non-consecutive weeks of paternity leave or a single period of one or two weeks
• allow employees to vary the dates of their leave, provided they give at least 28 days’ notice of the change
• allow leave to be taken at any time during the first year following the birth
• reduce the notice period required for each period of leave and pay to 28 days prior to each period of leave.

Similar provisions apply in relation to adoption, with the only significant difference being that the notice period for adoption leave will remain unchanged (within seven days of the adopter being notified of a match with a child).

Contributor: Sarah Maddock

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at January 2024. Specific advice should be sought for specific cases. For more information see our terms & conditions.