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6th December 2022

Government responds to proposed changes to flexible working requests


6th December 2022

Government responds to proposed changes to flexible working requests

The experience of the pandemic has significantly changed the landscape of flexible working. Around one third of the workforce worked from home during the COVID-19 pandemic and many remain working from home now on a hybrid basis.

The Government’s recent consultation on flexible working closed on 1 December 2021 and the outcome has now been published.

The pandemic has shown that working from home is possible for many employees but this consultation covered all flexible working, including requesting a change in working hours (e.g. part time, flexi-time or compressed hours) and job shares.

Proposals for reshaping flexible working

The consultation set out the following proposals for reshaping the existing statutory right to request flexible working:

  1. The Government’s key proposal was that the right to request flexible working would apply from the first day of employment, not after 26 weeks in the job (which is the current position). The Government has now confirmed that the right to request flexible working will become a day one right. However, it has emphasised that this will only be a right to request not a right to have flexible working.
  2. Employers are currently allowed to refuse flexible working requests on eight specific business grounds (including the burden of additional costs and a negative effect on quality or performance). The consultation asked if these eight specified grounds all remain valid and reasonable and the Government has concluded that they will stay the same.
  3. In addition, the Government proposed that employers should be required to show that they have considered alternative working arrangements, if they are minded to refuse the initial request. The Government has confirmed that there will be a new duty on the employer to discuss alternatives to the request. This means that if the employer intends to reject the request, it must discuss whether there are alternative forms of flexible working available. The procedure for requesting flexible working will also be simplified by removing the requirement for employees to set out how the effects of their flexible working request might impact upon the employer.
  4. In terms of the process to be followed, the Government suggested that employees should be allowed to make more than one request to work flexibly per year and that employers should respond more quickly to requests. Employees will now be allowed to make two requests within a 12 month period rather than one, and the time for employers to respond to the request will be reduced from three months to two months.

How will these proposals work in practice?

The Government’s proposals are clearly attempting to find a balance between the needs of both employers and employees. In the aftermath of the pandemic, many employers have adopted a more open approach to flexible working for current employees and having a day one right to request flexible working will hopefully encourage both employees and employers to discuss this during the recruitment process. However, employers may be uncomfortable dealing with a flexible working request from an employee who has only just started working for the company and has not even passed their probationary period yet.

In terms of considering alternative working arrangements, the aim of encouraging a culture where employers give full consideration to requests for flexible working and what might be possible (rather than simply rejecting the request) is laudable. Many employers would do this as a matter of course anyway in an attempt to work together with the employee to negotiate a compromise and help promote a stronger working relationship. As the Government pointed out in the consultation document, effective flexible working, balancing both employer and employee requirements, needs to involve discussion and negotiation. So if the employer cannot accommodate a particular part-time working pattern, they should consider an alternative pattern rather than just reject the request outright.

In terms of the process to be followed, allowing more than one flexible working request a year will allow the process to be more responsive to changes in an individual’s circumstances (for example, newly disabled people or new parents). However, businesses may struggle if they are asked to accommodate numerous requests from an individual so it is sensible to limit requests to two per year. The requirement for businesses to deal with requests more quickly may also be problematic for employers if they have to work through challenging organisational issues, such as rearranging shift patterns to accommodate a specific request.

Trade unions and the Labour party complained that the Government’s proposals for the consultation did not go far enough. They argued that the Government should be introducing a right to work flexibly as the default option, not just the right to request flexible working, which can then be refused by the employer. However, as the Government pointed out in the consultation document, given the range of different roles and business models as well as the multiple forms of flexible working, removing the ability of an employer to turn down a request is not achievable in any practical or sensible way.

The Government has said that primary legislation will be required to implement these changes to flexible working but has not yet set a timetable for when they will take effect.

If you have any employment law issues contact a member of our Employment team.

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