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Education briefing - Government publishes long awaited consultation on changes to the right to request flexible working

  • United Kingdom
  • Education - Briefings

27-09-2021

The right to request flexible working was introduced in the UK in April 2003. Originally limited to employees with 26 weeks service making a request in order to care for a child under the age of six (or a disabled child under the age of 18), it was widened to those caring for adults in April 2007 and the age of the child increased to 19 in April 2009, before being extended in April 2014 to all employees with 26 weeks service, irrespective of their caring responsibilities.

Even prior to pandemic the Government was looking at potentially further expanding the right to request flexible working. The Conservative Party manifesto published in November 2019 stated that it would “encourage flexible working and consult on making it the default unless employers have good reasons not to” and the same wording was used following the subsequent election as part of the (still awaited) Employment Bill referred to in the Queen’s Speech in December 2019.

During the pandemic the issue of flexible working, in particular working from home, has come very much to the fore. According to ONS statistics, at the height of the first lockdown in April last year, 47% of the UK workforce was working from home. In 2018 it is estimated that this figure was 11%. On a number of occasions over the last 18 months the Government has been asked about its plans for flexible working and it has responded by saying that a consultation on making flexible working the default position would be issued in due course.

That consultation was published on 23 September 2021 and closes on 1 December 2021. It sets out five proposals for “reshaping” the existing regulatory framework with the stated intention of better supporting employees to start the conversation about contract changes, and employers to respond. These five proposals are concerned with:

• 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;

• the administrative process underpinning the Right to Request Flexible Working; and

• requesting a temporary flexible working arrangement

We look at each of these in turn. 

Making the Right to Request Flexible Working a “day one” right

Currently the statutory right to request is available for employees once they have reached 26 weeks continuous service with their employer. It seems clear that the Government’s preferred course of action is to remove the 26 week qualifying period, although respondents are asked whether they agree with that and the reasons for their answer, including any considerations about costs and benefits that may affect employers and/or employees.

It is worth noting, however, that it would remain as a right to request flexible working rather than a right to actually do so. Although the Government has considered whether to remove the ability of an employer to turn down a request, it says it has concluded that this is not achievable, given the range of different roles and ways of working within them, the multiple forms of flexible working, the broad range of individual needs and the wide range of business models.

The Government has also concluded that the time is not yet right to introduce a statutory requirement for employers to say in job adverts whether flexible working is available, believing instead that making the right to request a day one right will better help deliver the culture change which could lead to flexible advertising becoming the norm.

There is also no suggestion that the right to request flexible working will be extended beyond those with employee status.

Whether the eight business reasons for refusing a Request all remain valid

Currently employers can reject a statutory request to work flexibly if the reason for doing so is one (or more) of the following: 

• the burden of additional costs

• detrimental effect on ability to meet customer demand

• inability to re-organise 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

• planned structural changes

There had been some speculation about whether these reasons would be in some way tightened. However, the Government says it is “broadly content” that these reasons for refusing a request do not present a disproportionate barrier to flexible working and sees no need for fundamentally changing them. In coming to this conclusion, it seems to have been influenced by evidence suggesting that only 9% of statutory requests are rejected. It says it is also clear that employers should be able to reject a request for flexible working where there are sound business reasons for so doing.

It does, however, ask respondents whether all of the eight reasons remain valid, their reasons for saying yes or no – and, if no, which reasons are no longer valid – and why. Interestingly, the consultation asks respondents to answer this question from the perspective of the employer.

Requiring the employer to suggest alternatives 

This would be a new requirement. The Government wants to encourage a culture where employers give full consideration to requests for flexible working and what might be possible and that, where employers are minded to reject the request that has been made, they consider whether different flexible working arrangements could be accommodated.

The consultation suggests the following options:

• where an employer cannot make a change permanently, they could look at making the change on a temporary basis (eg for six months);

• where an employer cannot accommodate a particular part-time working pattern, they might consider an alternative; or

• where an employer cannot make a change on all working days, they could look at making the change on some working days only

Therefore, the consultation explores how practical it is to ask employers to set out, when rejecting a request, that alternatives have been considered, what burdens this would impose on employers and whether it would have a knock-on effect on the time taken to deal with a request.

The administrative process underpinning the Right to Request Flexible Working

Under the existing provisions an employee can only make 1 request in any 12 month period and the employer has three months to notify the employee of the decision (including the decision on any appeal), unless a longer period is agreed.

The Government is considering whether to allow employees to make more than one statutory request in a 12 month period – asking respondents to the consultation to choose from the following options giving the options - no change, 2 requests, 3 requests, unlimited requests or other.

It is also looking at whether to reduce the time which an employer has to respond to a request with the following options given:

• no change

• less than two weeks

• more than two weeks, but less than one month

• more than one month, but less than two months

• more than two months, but less than three months

• other

Requesting a temporary flexible working arrangement

Although it is currently possible to request a temporary change, the Government believes this is under-utilised. Indeed it asks respondents whether they are aware that it is possible under the legislation to make a time-limited request to work flexibly, as well as examples of what would encourage employees to make time-limited requests.

Comment

Whilst the Government has rejected (at least for the time being) the more fundamental changes of altering the right to request flexible working to an actual right to work flexibly and introducing a statutory requirement for employers to say in job adverts whether flexible working is available, it seems there are still a number of important changes on the horizon.

Arguably the most far reaching of these would be the extension of the right to request flexible working from day one of employment, although many education sector employers already allow such requests under their internal policies. The Government estimates that approximately 10% of employees have changed their jobs, or started one, within the last six months – so this would extent the right to another 2.2 million people. It would also mean that such a discussion could well take place as part of the recruitment process.

Similarly, a shortening of the period institutions have to respond to claims and/or and the introduction of the ability for employees to make a request more than once in any 12 month period would increase the regulatory burden on institutions and require more agile decision making.

Employers will generally welcome the Government’s statement that they should be able to reject a request where there are sound business reasons to do so. If introduced it will be interesting to see how a requirement for employers to consider alternatives would work, although in reality institutions are likely to be doing this already as part of an approach to accommodate staff wishing to work flexibly where that is possible.

It is extremely likely that the consultation will lead to changes to the existing statutory regime and when any new legislation is published, institutions will need to review their existing internal policies and practices to ensure they are aligned.