15 Dec 2022

Last week the government published its response to the 2021 Making Flexible Working the Default consultation. The proposed changes to the flexible working regime have been described as a “no-brainer” way to help staff with caring responsibilities balance work and home life and create a more diverse workforce.

The government has also recently confirmed its support for the new Employment Relations (Flexible Working) Bill, which is currently going through Committee stage in Parliament and addresses most of the proposed changes set out in the consultation response.

Changes to the flexible working process

Significantly, the new Bill will result in secondary legislation allowing employees to request flexible working from day one of employment (by removing the current 26 week service requirement).

However, it will remain a right for employees to request flexible working, rather than an immediate right to work flexibly. This may be business as usual for some employers, as the response states that 69% of the consultation responses received from employers confirmed that they already accept flexible working requests from day one of employment.

Other legislative changes will include:

  • requiring employers to consult with their employees, as a means of exploring the available options, before rejecting a flexible working request
  • allowing employees to make two flexible working requests in any 12-month period (rather than one)
  • requiring employers to respond to requests within two months, rather than the current three months
  • removing the requirement for employees to set out how the effects of their flexible working request might be dealt with by their employer.

Over 1,600 responses were received to the consultation and the government reports that most indicated support for flexible working and the benefits it can bring, such as improved productivity, reduced absence, lower turnover of staff and overall better employee relations.

The response also suggested that in the context of a tighter labour market, flexible working can attract and keep people in work, and that offering flexible working can attract up to 30% more applicants to job vacancies (based on research by the Behavioural Insights Team).   

The grounds to reject a request will stay

However, the reaction to the government’s consultation response has inevitably been mixed, with the Trade Union Congress suggesting that the proposed changes will not go far enough.

In particular, employers will still be able to reject a flexible working request on one of the current eight statutory grounds (which the response confirms will not change), such as the burden of additional costs, detrimental impact on performance or ability to meet customer demand.

The consultation response makes it clear that some employer respondents still view performance and quality of work as highly relevant factors in considering a flexible working request, including in the context of homeworking arrangements. For example, staff may be needed in the office to train or supervise colleagues, share knowledge, or collaborate on work projects. As such, the ability to reject a request on that basis remains important.

Despite the grounds for rejection remaining unchanged, the realignment of the current process means that employers will need to focus on the potential alternatives and consult the employee before turning down any request.

One example given in the response is that if it is not possible to meet a request to change an employee’s working hours on all days, the employer should consider making the change for certain days instead. As it stands at the moment this approach reflects good employment practice, but it would seem a failure to explore alternatives in the future will put an employer on the wrong side of the law on flexible working.

Flexible working guidance

In addition to the legal changes, the government response also commits to producing guidance to raise awareness and understanding of how to make and administer temporary requests for flexible working.

Finally, there will also be a call for evidence to help the government better understand how ad hoc and informal flexible working operates in practice, such as when employees need to attend appointments or manage fluctuations in their health.

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