Making flexible working the default?

The Government has issued consultation on the proposals to reform the Flexible Working Regulations.

Flexible working requests: current provisions

Currently, employees with 26 weeks’ service can make a statutory flexible working request to change their hours, times or place of work. Only one request can be made in any 12-month period. The employer must consider the request in a reasonable manner and notify the employee of their decision within 3 months (or longer if that is agreed with the employee). If the request is agreed, this will result in a change to the employee’s terms and conditions of employment. The employer can refuse a request on one of eight permitted business grounds:

the burden of additional costs;
detrimental effect on 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.

The Government has previously stated its commitment to consult on making flexible working the default unless employers have good reasons not to. The pandemic has also recently had an impact on the way that employers and employees are thinking about flexible or hybrid working.

Consultation on reforms to flexible working

The consultation considers five key issues:

Making the right to request flexible working a day one right, removing the 26-week qualifying period;
Whether the eight business reasons for refusing a request all remain valid;
Whether the employer should be required to suggest alternatives;
The administrative process underpinning the right to request flexible working. In particular, whether the framework needs to change in relation to how often an employee can submit a request and how quickly an employer must respond; and
Requesting a temporary arrangement. Although the current provisions already allow for a temporary arrangement to be agreed, the Government believes that this ability to request a change for a defined, time limited period is under-utilised. The consultation seeks views on what would encourage employees to make time-limited requests to work flexibly.

In addition, the Flexible Working Taskforce will provide support to employers to make informed decisions on their future approach to flexible working. The Taskforce will be asked to take forward “the best of what we have learned through the pandemic and develop advice to support the change to the new ways of working we are expecting to see as the economy begins to fully open up”. The Taskforce will consider the practical and legal issues associated with a return to a workplace and a change in working practices and move on to provide wider advice on best practice.

The Government will also launch a call for evidence looking at the sort of “extra” flexibility people may need to help them live their lives in the best way they can – both at work and at home. The consultation seeks suggestions on the issues that the call for evidence might consider.

Comment

It is important to remember that employees do not have a right to work flexibly. The right is to request flexible working. These proposals do not change that position and do not go as far as making flexible working the “default”. The consultation makes clear that it would not be achievable to introduce a “right to have” flexible working, removing the ability of an employer to turn down a request, in place of a “right to request”.

The Government’s stated aim is to encourage and support flexible working, which it sees as particularly valuable for those who need to balance their personal lives with their working lives. It considers that this can also bring benefits to employers – attracting more applicants and increasing motivation levels.