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FAQs: UK government consultation on flexible working

Insights / / London

What is flexible working?

When an employee agrees to permanently change their working pattern, hours or location with their employer, this is known as flexible working. Flexible working requests may include working part-time, annualised hours, spending some days or hours working from home, or changing their working hours each day.

Flexible working was first considered only for those with childcare responsibilities, but it was expanded to include all those who were eligible and wanted to work flexibly. Prior to the Covid-19 pandemic, apart from those with childcare responsibilities, other requests to work flexibly were relatively rare. However, over the last 18 months our employer clients have seen an increase in flexible working requests from their employees.

What are the current rules on flexible working?

All employees with at least 26 weeks’ continuous service have a right to request flexible working. The request must be made in writing and the employer must deal with the request in a reasonable manner, usually within three months unless otherwise agreed. Under the current rules, eligible employees can only make one request in any 12 months.

Do all eligible employees have a right to work flexibly?

In short, no. All eligible employees have the right to request to work flexibly. A business can refuse a request provided it is for one or more of the following eight reasons:

  • The burden of additional costs;
  • Detrimental effect on the ability to meet customer demand;
  • Inability to reorganise work among existing staff;
  • Inability to recruit additional staff;
  • Detrimental impact on quality;
  • Detrimental impact on performance;
  • Insufficiency of work during the periods the employee proposes to work; or
  • Planned structural changes.

It is not difficult to select one of these reasons to refuse most requests, but there are other considerations to take into account before simply refusing and giving reason/s.

What is the best practice when considering a flexible working request?

It is important that employers deal with all requests in a reasonable manner. We would suggest that the employer arranges a meeting with the employee to discuss the request. This will allow the employer to gather more information about the employee’s suggestion and to understand how it will work in practice.

Employers should consider requests carefully and look at the benefits of the requested changes for both the employee and the business and weigh these against any adverse effects. Unless otherwise agreed, employers must notify the employee of their decision within three months. If it is uncertain whether the arrangement will work, employers should consider a trial period rather than an outright refusal to avoid the possibility of a discrimination claim.

We advise all of our employer clients to have a written policy in place, setting out the company’s position on flexible working. We also refer clients to the ACAS Code of Practice on Flexible Working Requests.

What is the government consulting on?

The UK government has published a consultation document proposing various changes to the current right for employees to request flexible working. The Government’s 2019 manifesto committed to encouraging flexible working and to consult on making it the default, unless employers have good reason for refusal.

What are the proposed changes?

The main proposed reforms are as follows:

1. Making the right to request flexible working a “day one” right

This means that all employees, regardless of their length of service, would be able to request flexible working. The consultation paper seems supportive of this change, and states that it did not:

“find evidence of unreasonable cost burdens on employers resulting from administering or accommodating flexible working requests”

This was one of the reasons the length of service requirement was included initially.

One issue with making requesting flexible working a "day one" right is that new employees may not yet fully understand how flexible working and their new role work together. As set out above, a key part of the process is discussing the benefits and drawbacks of an employee’s request. We must question to what extent new employees can meaningfully engage with this process.

However, if an employer knows that a job applicant can submit a statutory request on their first day at work, an employer may have considered how flexible working could work in practice and this could be discussed during the recruitment process if necessary. It is perhaps more likely that requests might be submitted after a three-month probationary period, rather than on day one, after the employee has at least had an opportunity to consider what is involved in the job role. Nevertheless, this would still be in advance of the previous lead-in period of 26 weeks.

2. Making changes, if necessary, to the eight business reasons for refusing a request to work flexibly

The consultation does not set out what the further reasons would be, but when considered on balance, it is broadly content that the current list of refusing a request does not prevent flexible working. Therefore, there is little case for changing them.  

3. Requiring the employer to suggest alternatives to the arrangement suggested by the employee

At present, an employer can reject a request for one of the eight reasons without suggesting an alternative. 

The consultation paper reminds us that the flexible working request process needs to be a negotiation. As part of this, we consider that an employer could assist in providing alternatives, such as making a change for a set period or suggesting a different working pattern that could work for the employer. Just because there is an ideal, both on the part of the employee and the employer, does not mean that there could not be a compromise reached rather than simply giving the employee the choice of full time or nothing as has happened in the past.

4. Changing the administrative process underpinning the right to request flexible working

The government is consulting on allowing employees to make a request more than once every 12 months and amending the current three-month decision period.

The paper states that it wants to ensure that the legislation is not placing unnecessary barriers to accessing flexible working among those whose personal situation may have changed within twelve months, such as newly disabled people or new parents.

5. Raising awareness of the existing right of employees to request a temporary flexible working arrangement

The current rules already allow a temporary arrangement to be agreed between the employee and the employer. The government believes that this ability to request a contractual change for a time-limited period is not often used, as most requests are for permanent changes only. However, this time-limited period of flexible working could be useful in some cases, for example if someone is undergoing some extra study outside work for a fixed period, or they need the flexibility of increased childcare before a nursery place or longer hours/additional days became available.

How can I respond to the consultation?

Responses can be submitted online or by email to labourmarketparticipation@beis.gov.uk. The consultation closes on 1 December 2021.

What steps do employers need to take if there are any changes made to flexible working?

We would advise that all employers conduct a review of their current policies and ensure they reflect the statutory procedure and any ACAS Codes of Practice.

If the right to request flexible working becomes a "day one" right, employers will likely need to update their recruitment policies and procedures to ensure this can be adequately dealt with under the potential new rules.

Generally, a more reasonable and practical attitude to flexible working needs to be considered by employers in order to avoid losing valuable people, simply because they cannot contemplate that the employee could work anything other than full time.  Those days are over, particularly during and hopefully post-COVID-19 era. These unprecedented times have demonstrated to businesses how resourceful their employees can be in the face of adversity.

For more information and advice on flexible working policies and procedures, get in touch with a member of our Employment team today.

Holly Freuchen

Holly Freuchen Associate

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Tags:

Employment issues / Discrimination / Flexible Working