Earlier this year it was announced that the Government had plans to consult on changes to our flexible working regime.
The Government’s Consultation Paper has now been published and illustrates the Government’s intentions regarding how flexible working rights will operate in the future.
The current position
The Flexible Working Regulations 2014 (the “Regulations”) currently in force provide all employees with the right to request flexible working, not just those who have caring or parental responsibilities as had previously been the case.
Flexible working arrangements can include not only working from home or hybrid working, but also other working options such as job-sharing, flexitime and compressed or staggered hours.
However, certain conditions must currently be met in order to qualify for the right to request flexible working, namely:
- a request can only be made by an employee and not, for example, by an agency worker, employee shareholder or member of the armed forces;
- the requesting employee must have accrued 26 weeks’ continuous employment as at the date they make the flexible working request; and
- the requesting employee can only submit one request (under the Regulations) in any 12 month period.
The employer’s obligations upon receiving a flexible working request are to:
- deal with the request in a reasonable manner. This would include carefully reviewing the request and discussing it with the employee (the ACAS Code of Practice on flexible working requests contains more information in this respect);
- notify the employee of its decision within 3 months of the request being made (or longer, if agreed by both parties); and
- refuse the request only if one or more of the eight specific grounds of refusal apply. These grounds include the burden of additional costs on the employer as a result of the request being granted, or if granting the request would result in a detrimental impact on employee performance or quality of work.
Time for change
There have been repeated calls and campaigns for changes to the flexible working regime over the years, but progress has been slow. However, since the pandemic, it has been clear that attitudes towards flexible working have significantly changed.
Pre coronavirus working patterns were largely built around “normal working hours” being completed in the office, rather than based upon the overall output of employees. During the pandemic, we have all experienced stay at home orders and multiple lockdowns, such that many industries were forced almost overnight to allow working from home and/or other flexible working arrangements. Indeed, the impact of the pandemic has shown that the flexible working ideals promoted by certain campaign groups are not only achievable, but also highly valued by many employees who are now prepared to move jobs in order to sustain the flexibility they had during lockdown.
The Government’s proposal: Making flexible working the default
The Department for Business, Energy and Industrial Strategy (BEIS) launched its consultation paper, ‘Making Flexible Working the Default’, in response to this growing desire for flexibility and in line with the Government’s 2019 manifesto.
The Consultation sets out five key proposals for recalibrating the existing legal framework around flexible working practices. It will consider:
- making the right to request flexible working a “day one” right. That is, a right available to all employees from the start of the employment relationship;
- whether to retain the existing eight business reasons for refusing a request;
- requiring the employer to suggest alternatives (if, for example, the request made cannot be accommodated);
- removing the restriction on employees being able to make only one request per year; and
- allowing a request for a temporary arrangement (i.e. requesting to work flexibly for a limited period of time).
In addition to the proposals for reform, the consultation paper also considers other steps that may assist employers in making informed decisions with regard to their future approach to flexible working. In particular:
- The Flexible Working Taskforce will be invited to consider how to make the most of the lessons learned over the last 18 months as more employees begin to return to the workplace and as employers respond with new approaches to working.
- Considering how to secure a flexible working friendly culture across and within organisations by launching a separate “call for evidence”. This will explore the need for informal workplace flexibility and will look for evidence that highlights the different types of flexibility employees may need to help them live their lives in the best possible way.
What do these proposals mean for employees and employers?
It is important to note that the changes proposed will not provide an absolute right for employees to work flexibly. It does not go as far as to make flexible working “the default unless employers have good reasons not to” (something the Government had said it would consult on in its 2019 manifesto).
These proposals are not, therefore, the panacea that some were hoping for. Employees will still have to take the first step and make a request to work flexibly and it will still be up to the employer to determine whether such a request is granted. As long as the employer is able to demonstrate that it has properly considered a request and has a justifiable business reason for refusing it, it may legitimately do so and have a defence to possible complaints of discrimination.
Nonetheless, removing the current 26 week qualifying period and the limit of making only one request per year is welcome progress, not only for those who have commitments outside the workplace, but also for those who are more generally looking for greater control over their working lives. In that sense, the proposed legislation is simply creating a regime that better reflects the reality of modern life for those who work in the UK.
Ultimately, if there is going to be a further shift in favour of flexible working, it will take more than just legislation to get us there. Employers are going to have to adopt a cultural move towards flexible working practices, and it will be up to them to communicate these rights to their employees and to remain open to doing things differently, so that their employees feel able, confident and enfranchised to make such requests.
If you have any questions or concerns regarding the topics covered in this blog, please contact any member of the Kingsley Napley Employment Team.
About the Authors
Richard is a partner in the Employment Team, which he founded nearly 25 years ago. He acts for corporates, organisations and senior individuals in relation to employment matters of all kinds. He has been President of the London Solicitors Association (2000 to 2002), Chair of the Employment Lawyers Association (ELA’s) Legislative & Policy Committee (2008 to 2010), ELA Deputy Chair (2010 to 2012) and ELA’s National Chair (2012 to 2014). He is a well known commentator on employment issues of all kinds.
Moira is a highly experienced employment solicitor. She has successfully represented both employers and employees in the Employment Tribunal for unfair dismissal, discrimination, whistleblowing and breach of contract claims. She has particular experience of advising employers and senior executives in respect of redundancy situations and diversity and equality matters.
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