Changes to flexible working requests: what you need to know
In 2021, the Government published a consultation which set out proposals to make flexible working the default and to better support both employers and employees to reach appropriate working arrangements. This ran for 12 weeks and received over 1,600 responses from a range of stakeholders.
In this blog, our expert employment law solicitors summarise the government’s response to this consultation.
What are the proposed changes to flexible working for employees?
The Day One right to request flexible working
Currently, employees only have the right to request flexible working once they have been employed for 26 continuous weeks.
The government has emphasised that the Day One right will remain a right to request flexible working, not a right to have flexible working.
Two requests for flexible working
Currently, employees can only make one request within a 12-month period and the employer’s response time is three months. Employees will be allowed to make two requests within a 12-month period and the employer’s response time will be reduced to two months.
This will make flexible working more accessible and will support employees if their circumstances change.
The duty to discuss alternatives to flexible working requests
The consultation considered whether employers should have a duty to consider alternative flexible working arrangements if they reject an employee’s request.
94% of respondents supported this principle and emphasised the need to treat requests decently, as well as the importance of open conversation between employee and employer to reach a suitable arrangement for everyone.
It is not yet clear whether this will be a statutory requirement or only guidance.
Simplified flexible working requests
Currently, employees are required to state how their proposed flexible working might impact their employer. Because this can be complicated and involve business knowledge and terminology, this can lead to indirect discrimination. For example, a new employee with dyslexia might be at a disadvantage to a senior manager with ten years of experience at the company.
The Government intends to remove this requirement which will make the procedure for requesting flexible working more inclusive.
However, the response does not mention how other ‘red tape’ elements of flexible working applications will be addressed, such as dating the request and explicitly stating it is requested under suitable flexible working legislation.
Rejecting an application for flexible working
There are currently eight reasons why an employer can refuse a flexible working request. These are:
- Extra costs that will damage the business
- The work cannot be reorganised among other staff
- People cannot be recruited to do the work
- Flexible working will affect quality and performance
- The business will not be able to meet customer demand
- There’s a lack of work to do during the proposed working times
- The business is planning changes to the workforce
The majority of responses to the consultation supported a reduction in this list, however, as there was a clear difference between the views of the employees and the employers, there will be no changes to the eight rules. It has been advised that employees and employers should have open conversations to come to an agreement on a case-by-case basis.
What are the next steps?
One of the main takeaways from this flexible working consultation is that genuine flexible working does not come in a one-size-fits-all.
Following the consultation, the Government will:
- Make the right to request flexible working a Day One Right, through secondary legislation when parliamentary time allows;
- Develop more detailed guidance around temporary flexible working requests; and
- Launch a call for evidence to further understand how informal or ad hoc flexible working works in practice.
The Government will also take forward the following, which will require primary legislation:
- Requiring employers to consult with their employees to explore all flexible working options, before rejecting their request;
- Allowing employees to make two flexible working requests in any 12-month period and employers must respond within two months; and
- Removing the requirement for employees to set out how the effects of their flexible working request might be dealt with by the employer.
Although this is great progress for improving workers’ rights around flexible working, the Government has not released any draft legislation or set out a timetable for the legislation changes.
The Government has said it will support the existing Private Members’ Bill, which means that the changes to the amount of flexible working requests an employee can make within 12 months, and the response time the employer gets, will likely be happening soon.