Is flexibility the key to stability? Government publishes response to flexible working consultation

United Kingdom

The Government has now issued its response to last year’s consultation on flexible working. The consultation, launched in September 2021, outlined the Government’s proposals to amend employees’ statutory right to request flexible working. The current right is only available to employees with 26 weeks’ continuous service and the business reasons available to employers for refusing a request have not been reviewed since the right to request flexible working was first introduced almost 20 years ago on 6 April 2003.

The consultation proposals included making the right to request flexible working a “day one” right, amending the eight business reasons for refusing a request especially in light of the Covid-19 pandemic and requiring employers to consider alternative working arrangements where a request is rejected.

The Government’s response to the consultation, along with its next steps, is summarised below.

1. The Government will make the right to request flexible working apply from the first day of employment.

Its response noted that the 26-week qualifying period had led to a negative perception that flexible working is something that has to be “earned” rather than the norm. The response also recognised that there is no “one size fits all” approach to working arrangements and concluded that the legislation should remain a right to request, not a right to have (a row back from the Government’s original aim of making flexible working the default for all).

The Government concluded that making the right to request flexible working a day one right is a proportionate step to take.

2. The Government will require employers to consult with their employees, as a means of exploring the available options, before rejecting their flexible working request.

The Government’s consultation sought views on whether employers should be required to show that they have considered alternative arrangements when rejecting a flexible working request.

This principle was supported by an overwhelming majority of respondents who recognised the importance of discussions between employer and employee about flexible working arrangements and avoiding that process becoming a “tick box exercise”.

The Government’s response concluded that such a requirement would encourage wider consideration by employers of what might be workable for their employees rather than outright rejection of unworkable requests and facilitate a more open and constructive dialogue between employers and employees.

3. The Government will allow employees to make two flexible working requests in any 12-month period and require employers to respond to requests within two months.

The Government’s consultation sought views on whether to allow a greater number of requests (currently limited to one flexible working request in a 12-month period) and reduce the period in which employers must respond to a request (currently 3 months).

The response acknowledged concerns about the prospect of repeat requests and the associated burden on HR and giving smaller business in particular enough time to properly consider requests.

The response noted that these changes were supported by the majority of respondents and concluded that they would support the overall policy objective of normalising flexible working.

4. The Government will remove the requirement for employees to set out how the effects of their flexible working request might be dealt with by the employer.

During the consultation, employee representative bodies including the TUC and EHRC suggested that the existing requirement for an employee to set out how the effects of their flexible working request might be dealt with by their employer could lead to unfair and potentially discriminatory treatment.

The response endorsed a more consultative approach whereby an employer seeks to engage with an employee to jointly understand the potential impact of their flexible working request.

The Government’s response confirmed that the current list of business reasons (see the table below) will remain unchanged. It also confirmed that the Government will develop enhanced guidance to raise awareness and understanding of how to make and administer temporary requests for flexible working. Finally, the response stated that the Government will issue a call for evidence in respect of informal, non-contractual flexibility within the workplace such as attending appointments or managing fluctuations in health.

All of the Government’s confirmed changes are already covered by a Private Member’s Bill, the Employment Relations (Flexible Working) Bill 2022-23, which was introduced in the House of Commons on 15 June 2022. The Bill passed its second reading on 28 October 2022 and has now gained Government backing, but has still to progress through Parliament. Based on the normal passage of legislation through Parliament, we might expect to see amending legislation introduced during the course of 2023.

Many organisations may well already offer more generous flexible working arrangements than the current minimum statutory obligations. However, even those with generous arrangements may need to update the details of their policies and practices to accommodate the proposed new requirements. Assuming the Bill progresses based on current drafting, all employers should start preparing in due course to review and update their policies and practices, including implementing appropriate management training on dealing with such requests, to accommodate these expected changes.

Section 80G, Employment Rights Act 1996 (Statutory Grounds for Refusing a Flexible Working Request)

1. The burden of additional costs

2. Detrimental effect on ability to meet customer demand

3. Inability to reorganise work among existing staff

4. Inability to recruit additional staff

5. Detrimental impact on quality

6. Detrimental impact on performance

7. Insufficiency of work during the periods the employee proposes to work

8. Planned structural changes