The Government has recently launched a consultation on flexible working which closes on 1 December 2021. The pandemic has shown that working from home is possible for many employees but this consultation covers all flexible working, including requesting a change in working hours (e.g. part time, flexi-time or compressed hours) and job shares.

5 proposals for reshaping flexible working

The consultation sets out five proposals for reshaping the existing statutory right to request flexible working:

  1. The Government’s key proposal is that the right to request flexible working will apply from the first day of employment, not after 26 weeks in the job (which is the current position).
  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 asks if these eight specified grounds all remain valid and reasonable.
  3. In addition, the Government is proposing that employers should be required to show that they have considered alternative working arrangements, if they are minded to refuse the initial request.
  4. In terms of the process to be followed, the Government suggests that employees should be allowed to make more than one request to work flexibly per year. The proposal also asks for views on requiring employers to respond to requests more quickly. Companies are currently obliged to deal with requests in a reasonable manner and give a decision within three months of the request.
  5. The Government also seeks views on encouraging employees to make requests to work flexibly for a temporary period.

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.

Given that some figures suggest that one in three flexible working requests are refused, it seems sensible to consider whether all the specified business reasons for refusal remain valid and reasonable. However, a range of permitted reasons will still be required given the varied needs and requirements of different businesses.

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 points 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 might 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 requests will still need to be limited in some way. The proposal 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.

Employees already have the right to ask for a temporary flexible working pattern, for example, to settle a child into school or support an elderly parent moving into a care home, but this right is under-utilised. However, encouraging temporary flexible working arrangements may be disruptive to small businesses who will have to cover the staffing issues caused by such a temporary change in working hours.

Trade unions and the Labour party have complained that the Government’s proposals do not go far enough. They argue 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 points 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.

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