In 2019 (pre-pandemic), the Conservative Party manifesto committed to “encourage flexible working and consult on making flexible working the default unless employers have good reasons not to”. In 2021, the Government published this consultation, and set out proposals covering issues such as whether the right to request flexible working should be a day one right and exploring whether the eight business reasons for refusing a request all remain valid.
The consultation has now received over 1,600 responses from a range of stakeholders, the majority of whom were individuals (83%) with the balance being primarily employers and trade unions. The responses have overwhelmingly shown a desire for flexible working to be more accessible. The Government has now confirmed the approach it will take going forward as a result of the consultation.
The Governments’ Response:
The right to request flexible working will become a Day One right
Currently, this right is only available to employees with 26 weeks’ continuity. The Government believes that, making the right to request flexible working a day one right, is a proportionate step to take. However, the Government is keen to stress the difference between a right to request, and a right to have, flexible working.
Employees will be able to make two requests within a 12-month period
Currently, employees are able to make only one request for flexible working within a 12 month period. The Government believes that employees should be able to make more than one request within a 12 month period, and that employers should be required to respond to requests more swiftly. As such, two requests are now to be permitted, with employers being required to respond within two-months as standard.
A duty to discuss alternatives is to be introduced
The duty to discuss alternatives to any request for flexible working will be a new requirement of employers. It is not yet clear if this duty will be a statutory requirement, or if it is simply soft guidance but the obligation to discuss seems to go further than the current obligation to ‘consider’ alternatives.
Simplification of the request process
Currently, there is a requirement for employees to set out to their employer how their requested flexible working will affect their ability to cover their work and their team etc. This requirement is to be removed. The Government believes that it should not be on the employee to set out the business case, and that employers should seek to engage with employees jointly throughout the request process.
The eight reasons to refuse flexible working remain
The eight reasons an employer is able to refuse a request are currently:
- extra costs that will be a burden on the business;
- the work cannot be reorganised among other staff;
- people cannot be recruited to do the work;
- flexible working will negatively affect quality;
- flexible working will negatively affect performance;
- the business’ ability to meet customer demand will be negatively affected;
- there is a lack of work to do during the proposed working times; or
- the business is planning structural changes.
Whilst an overall majority in the consultation process supported a reduction to this list of business grounds for rejecting a flexible working request, no clear picture of how to make this reduction was identified. Further, there was a clear difference between the views of individuals and employers, sparking concern that responses were largely in relation to how the reasons are used, rather than what they actually say. It is for these reasons that the Government will retain all eight reasons.
The above discussed changes will be taken forward by the Government using Primary Legislation where needed. There is currently a Private Members Bill, the Employment Relations (Flexible Working) Bill, which has recently passed its second reading and which will continue to receive the Governments support.
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