The government has begun consulting on its plans to reform the statutory right to request flexible working, including extending the right to request flexible working to all employees by removing the current qualifying service requirement of 26 weeks and making it a Day One right.
The consultation builds on proposals published in July 2019 in the Good Work Plan: Proposals to support families and the Conservative Party’s 2019 manifesto commitment to encourage flexible working and to consult on making it the default unless the employer has good reasons not to. Although the plans to reform flexible working were delayed as a result of the COVID-19 pandemic, the changes to working practices that employers put into place in response to the pandemic as a result of the requirement for many employees to work from home, have been a catalyst for change and opened the eyes of employers and employees alike as to what is possible. The government states that 'we now have the chance to seize the moment and make flexible working – in all its forms - part of business DNA' and in fact, many employers are already putting into place hybrid working models. Whilst homeworking will be an obvious area of focus, the government is also careful to make clear in the consultation that the need for flexibility in working arrangements applies equally to those who cannot work from home due to the nature of their role, for example, through changes to hours or patterns of work.
What changes are proposed?
The consultation is entitled 'Making flexible working the default' and, although this was the initial plan, the government has decided that removing an employer’s ability to turn down a request for flexible working was not achievable in a practical or sensible way. Instead, the government wants to support genuine two-sided flexibility, with the starting point being a conversation between employer and employee about how best to balance particular work requirements and specific individual needs. Therefore, the proposal is to amend the Flexible Working Regulations 2014, keeping the requirement for the employee to make a request but making some changes to the process.
The consultation sets out five proposals and seeks views on:
- making the right to request flexible working a day one right
- whether the eight business reasons for refusing a request all remain valid
- requiring the employer to suggest alternatives, if the original request is not accepted
- the administrative process underpinning the right to request flexible working; and
- requesting a temporary arrangement.
What if the request will not work for the business?
The government’s intention is to turn the current approach on its head; rather than an employer focussing on why a particular flexible working request might not work, it should be considering if there are alternative arrangements that may work instead. With this in mind, the government is considering building a requirement into the legislation for employers to show that they have considered alternative working arrangements before rejecting an employee’s request for flexible working. For example, if an employer cannot make a permanent change to working hours, would a temporary change be possible? Or if the change to working hours is not possible on all working days, would it be possible on some working days? The aim is to encourage an informed discussion and for a compromise to be reached.
How many requests will an employee be able to make?
Another aspect of the existing legislation that is being reviewed is that currently an employee can make only one statutory request every 12 months and an employer has three months to consider whether that request can be accommodated. The government is considering whether multiple requests should be allowed in order to respond to an employee’s changing personal circumstances and is seeking views on how many requests an employee should be allowed to make in any 12 month period. It is also seeking views on whether the three month time period to consider the request should be reduced and how long an employer needs to respond.
What about temporary changes?
The current legislation already provides for a temporary arrangement to be agreed between the employee and employer but the government believes this is underutilised and is seeking views on what would encourage employees to make a ‘time-limited’ request to work flexibly. This may apply, for example, to support a child settling into school or an elderly parent moving into a care home.
What other steps are being considered?
In addition, the government is also considering other steps to help make flexible working the default including:
- Inviting the Flexible Working Taskforce, a partnership across business groups, trade unions, charities and government departments, to consider how to move on from the immediate response to COVID-19 and make the most of the lessons learnt over the last 18 months as more people start to return to the workplace and as employers respond with new approaches to working.
- Launching a new call for evidence on how to secure a genuinely flexible working friendly culture across and within organisations.
The consultation closes on 1 December 2021 and is available on the GOV.UK website if you would like to respond.
Read consultation
What steps should employers take?
Changes to the legislation and the way employers are required to handle flexible working requests are likely to be introduced at some point next year and with this in mind, employers should continue to review working practices to consider what has been working well and not so well during the pandemic and what the effects are of any new hybrid working arrangements.
The situation will continue to evolve and employers will need to be prepared to adapt procedures to deal with differing flexible working requests as employees adapt to different challenges as they return to work.
If you have any questions about how these developments will affect your business, please contact Katie Russell or anyone in the Burges Salmon Employment team, who will be happy to advise you.
This guidance notes gives general information only and is not intended to be an exhaustive statement of the law. Although we have taken care over the information, you should not rely on it as legal advice. We do not accept any liability to anyone who does rely on its content