Government starts consultation on making flexible working the default position

In 2019, the government committed to supporting flexible working and, subject to consultation, introducing measures to help ‘make flexible working the default’ unless employers have good reasons not to.

On the 23rd of September 2021, in the wake of COVID-19, the Department for Business, Energy, and Industrial Strategy (BEIS) launched a consultation to ask opinions on whether to ‘make flexible working the default’.

The consultation reviews several reforms to the existing flexible working legislation, including making the right to ask for flexible working a “day one” right.

The current law on flexible working

Under the current law, employees with at least 16 weeks’ continuous employment can apply to work flexibly. Such employees can make one request in any 12-month period.

Eligible employees can request to change when they are required to work, their work hours, and their place of work.

  • The employer has three months to decide on their employee’s request. The employer can refuse a request for the following reasons:
  • The burden of extra costs
  • Profound effect on the ability to meet customer demand
  • Inability to recruit more support
  • Inability to recognise work amongst peers
  • Serious impact on quality
  • Serious impact on performance
  • Planned structural changes
  • Lack of work during the periods that you propose work

What are the proposed changes?

The consultation sets out five proposals to change the existing legislative framework:

1. Enabling employees to request flexible working from ‘day one’.

Currently, a 26-week qualifying period is in place: employees can only request flexible working if they have worked for their employer for a minimum of 26 weeks. The government believes making flexible working available from ‘day one’ will urge employers to consider flexible working options early in job design and give employees more opportunities to request it.

Notably, despite the title of consultation, the proposal is not seeking a default right to work flexibly but instead the right to request flexible working.

2. Ensuring the eight business reasons set out in the Employment Rights Act for refusing a request remain valid.

Employers must be able to point to one or more of the business grounds set out in the legislation when they turn down a request to work flexibly under the statutory scheme.

The government acknowledges that not all businesses can offer flexible working and makes it clear that employers should be able to reject a request if the circumstances permit it.

3.Requiring employers to consider alternatives if they turn down a request

If an employer has relevant business reasons, they can turn down a flexible working request. The government wants to determine whether it’s viable to ask employers to set out alternatives when they reject a request. Whilst many employers are already doing this, clear and practical guidance on potential alternatives is necessary if flexible working does become a requirement.

4.Evaluating the administrative process

The consultation seeks views on changing the legal requirements around flexible working requests; should more than one request be permitted per year, and should an employer’s three-month period to respond to a flexible working application be reduced?

If responses to the consultation suggest one can make more than one flexible working request in a 12-month period, this will significantly impact the employers. The government would need to provide employers with clear guidance on dealing with a situation where an employee submits the same request again.

5.Temporary arrangements?

Under the current regulations, when an employer agrees to an employee’s flexible working request, it will permanently change their employment contract unless the parties agree otherwise. The government believes that the ability for employees to request a temporary arrangement is underused and wants to find out whether businesses know that they can agree on short-term flexible working arrangements.

In addition to these proposed changes, the “Flexible Working Taskforce” will decide how to proceed with the lessons learnt over the past 18 months alongside the transition to new ways of working.

The government describes its flexible working plans as “empowering”, giving workers “more say over when and where they work”. However, for some, the proposals are too limited: they don’t enable employees to work flexibly, and employers are not required to state in job ads their availability for flexible working.

In light of the Covid pandemic, we must remember that the move towards flexible working has already begun. Employers should thus be understanding of their employees’ wishes to work flexibly.

Employment Law is complex and constantly changing and the consequences of getting on the wrong side of it are potentially very damaging. It is, therefore, essential that the advice provided to both employers and employees is practical and takes account of not only the law but what an employer or employee aspires to achieve. Contact us on 020 8891 6141