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Potential expansion of the right to request flexible working

  • United Kingdom
  • Employment law

23-09-2021

The Government has today published a Consultation “Making Flexible Working the Default” regarding a potential expansion of the right to access flexible working arrangements in Great Britain (not currently extending to Northern Ireland). The Consultation closes on 1 December 2021.

In its 2019 Election Manifesto, and picking up from its Good Work Plan whilst in Government, the Conservative Party reaffirmed a commitment to “encourage flexible working and consult on making this the default position unless employers have good reasons not to allow it”.  The accepted rationale was that developing the 2014 right to request flexible working regime would further increase accessibility to work for a wide range of people, including women, older workers, carers and disabled people.

Following the coronavirus  pandemic, flexibility by employers and workers alike over how to work;  when to work; and where to work has been pivotal to business continuity and, in many cases,  survival. Although a review of the current legal framework was already planned pre-2020, today’s Consultation is more timely than ever. Even so, the critical question was, and remains, how to achieve fairness and access to the labour force, whilst facilitating an employer’s reasonable refusal of a flexible working request. 

Proposals to reshape the existing flexible working regulatory framework

  • a day one right: making the statutory right to request available to all employees from the first day of employment (currently a qualifying period of six months’ employment applies)
  • a quicker response time: views are sought on whether the time period within which an employer must respond should be reduced (currently a response time of three months applies to any request)
  • multiple requests: whether allowing employees to make more than one request per year would make the statutory framework more responsive to changes in an individual’s circumstances (currently, employees may  lodge only one flexible working request per year)
  • reasons for refusal: whether the existing reasons for refusal remain valid (currently, the statutory provision sets out eight potentially acceptable business reasons )
  • obligation to suggest alternatives: whether employers should set out, when rejecting a request, that alternative working arrangements have been considered (currently an employer simply has to say that a request cannot be accommodated, with the relevant business reason(s))
  • temporary arrangements: how to encourage employees to make time-limited statutory requests to work flexibly (although this is an existing right, the Government considers that it is currently under-utilised)

No changes are proposed to the nature of flexibility requested, which will still include hours of work (in number or the times of work) and place of work. However, agency workers remain excluded from the scope of the Consultation. The Government has also chosen not to move forward with an obligation for employers to publish a flexible working statement or policy, although they continue to support this on a voluntary basis.

Comment

Post-pandemic, today’s announcement comes at a time when experience of flexible working by employers, as well as employees, has been transformed.

Although the focus of discussion around flexible working was most likely to be upon part-time hours or working hours variations, such as term-time working, the existing flexible working regime was always designed to allow much broader requests, including home-working. Little did the Government or the rest of us appreciate that, just a year later, the pandemic would force a huge proportion of the working population to engage in working from home, outside of any formal arrangements or prior contractual accommodations. In practical terms this has meant that many workers are now set up to work from home. But what is also apparent is that this period has proved transformational in terms of attitudes to flexible working, not only for workers themselves but for many employers. It has also demonstrated that in most cases flexible working (particularly from home) can be very successful, and this was not widely appreciated in the past.

Whilst flexibility has not facilitated business continuity for all, by any means, a change in mind-set for many will surely influence strongly the nature of responses the Government receives to today’s Consultation and the principles of a revised framework for accommodating flexible working, going forwards.