The Government has this morning published a consultation document entitled “Making flexible working the default”, which includes its proposal to allow all employees to request flexible working from day one at a new employer, replacing the current 26-week period.

This proposal was part of the Conservative party’s manifesto in the 2019 election but saw its introduction delayed by the Covid-19 crisis. This crisis and the various national lockdowns it necessitated have brought the issue of flexible working into the spotlight as employees demonstrated their effectiveness at working from home and is an issue that we see both employers and employees grappling with as we move towards a “new normal”.

In our roadmap back to the office in 2021, we expressed our view that employers would see an increase in flexible working requests as offices reopen and today’s release of the latest proposals, if implemented, would almost certainly see a greater number of requests being made.

So, what do the proposals mean in practice and how does this differ from the current position?

1. Current position  

Currently, employees with at least 26 weeks’ continuous employment can make a request for flexible working under the statutory scheme for a change to their contracted hours, working times and/or place of work for any reason.

Under the statutory regime, an employee can only make one request in any 12-month period and once made, an employer must deal with the request in a reasonable manner, make a decision within three months beginning on the date on which the request is made (or such longer period as agreed between the parties) and can only refuse a request for one of the eight prescribed reasons. These include, the burden of additional costs, detrimental impact on the quality of services and inability to recruit additional staff.

Where an employer is unsure as to whether a flexible working request is sustainable or can be accommodated in practice, the parties can agree a trial period, which should be no longer than required to make a reasonable assessment of the proposed new flexible working arrangements.

2. Proposed position

The consultation paper sets out five proposals for reshaping the existing framework around flexible working, to make flexible working the default unless employers have a good reason not to.

It considers:

  • Making it a right to request flexible working from day one, removing any requirement for continuous service as a pre-requisite;
  • whether the eight prescribed reasons for refusal of a flexible working request remain valid;
  • requiring employers to suggest alternatives, where possible;
  • the administrative process underpinning the right to make a flexible working request, including whether employees should be allowed to make more than one request per year and whether the three-month time limit for responding to such a request is the right balance; and
  • requesting a temporary arrangement.

The proposals are a significant shake up to the current regime and if implemented, would inevitably result in an increase in flexible working requests. It is therefore more important than ever to ensure that employers have a clear flexible working policy in place that can be implemented and followed consistently where required.

3. Is this akin to a right to work from home? 

No. It is important to note that the new proposals are not intended to create a right to work from home for all employees, but rather the right to make a request for flexible working on day one. This could of course include a request to work from home either on a part-time or full-time basis, but it is not the case that such requests must be granted.

In response to any flexible working request, it is open to employers to set out a sound business rationale for why flexible working cannot work in specific circumstances, which would need to be carefully considered and weighed up in line with any flexible working policy on a case-by-case basis.

4. A cautionary note

Flexible working requests (under the current or proposed regime) do need to be handled correctly, and proper and due consideration needs to be given by employers before any such request is rejected.

This is especially so in the context of requests received from women who have childcare responsibilities as demonstrated in the very recent case of Thompson v Scancrown Ltd t/a Manors, in which an Employment Tribunal claim for indirect sex discrimination was upheld.

In this case, Scancrown refused Sales Manager, Mrs Thompson’s request that she return from maternity leave on four days a week (as opposed to five) and to leave at 5pm (instead of the usual 6pm), to enable her to collect her daughter from nursery. The request was refused, without any alternative proposal, and after a series of grievances and appeals, Mrs Thompson resigned.

The Tribunal found that the requirement for Sales Managers to work full-time, 9am until 6pm Monday to Friday put Mrs Thompson at a disadvantage and Scancrown’s concerns about changing the make-up of a team in a time of commercial uncertainty did not outweigh the discriminatory impact on her.

Scancrown’s failure to properly consider the request (such as agreeing to a trial period or allowing the request to be accommodated in a modified form) resulted in an award being made to Mrs Thompson of £185,000.

Employers should therefore be alive to the importance of dealing with such requests properly as failure to do so can be a costly mistake to make.

5. Recommended approach

At the moment, employers and employees are still adapting to new working arrangements. We would recommend against such arrangements being fixed too early as we move towards another uncertain winter with Covid-19 and equipped with the knowledge that a return to working from home is high on the Government’s contingency plan for any unsustainable pressure on the NHS in the coming months.

We recommend that employers continue to keep working patterns under review and obtain feedback from managers and employees as to how everything is working whilst matters continue to be subject to change. We suspect that it won’t be until Spring/Summer 2022 that the picture becomes far more settled, and it may be advisable to wait until then before new contractual working arrangements are made.

Where flexible working requests are made, employers will need to deal with these in line with the statutory regime currently in place (as well as any applicable flexible working policy). As above, such requests should be considered carefully, and advice sought where necessary.  

The approach taken will depend on the extent to which employers feel comfortable with their new working patterns and how they believe employees’ requests can be accommodated.

We suspect that in most instances, businesses are not yet able to say what the optimal pattern of working is for their organisation or its people and in these cases, we would suggest seeking to agree to an extended trial period so that the suitability of any such request can be properly considered and reviewed once a more consistent and settled idea of the “new normal” emerges.

If these considerations do not apply and the employer is able to fully assess the flexible working request now it should be dealt with promptly and fully without unreasonable delay.

Contact us

If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak to your usual Fox Williams contact.

Associate, Kimberley Dennis was a contributor to this article.


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