Proposed changes to flexible working

It is very unlikely that there will be an employer or employee whose employment has not been affected by the Covid-19 pandemic. Many of us now work far differently then we did before, whether that is working from home permanently or in a new ‘hybrid model’. It is certainly clear that for many people, working more flexibly has become the new normal.

With this shift in working arrangements in mind, the government recently published a document, ‘Making Flexible Working the Default Proposal’ , seeking views from businesses and individuals. The consultation ends on the 1^st December 2021.

Initially, the government considered whether employees should have the right to work flexibly and remove the ability for an employer to refuse a flexible working request. However, they realised that this would not work in practice, and therefore, for now at least, employers will still be able to refuse a flexible working request.

Under the current legislation an employer can refuse a flexible working request for any one of the following reasons:

• Planned structural changes;
• The burden of additional costs;
• Quality or standards will suffer;
• The employer isn’t able to recruit additional staff;
• Performance will suffer;
• Can’t reorganise work amongst existing staff;
• Will struggle to meet customer demand; and
• Lack of work when the employee wishes to work.

What is clear from the consultation paper is that the government wants to implement some changes to the current flexible working request framework and the paper sets out the following proposals for reshaping the current system:

1. Allowing employees to request flexible working from the first day of employment.

At present an employee has to be employed for 26 weeks before they are eligible to make a flexible working request.

The idea behind the proposed change is to make employers consider right from the offset whether a role can be offered flexibly, and if so, to advertise the fact.

2. There is a suggestion that changes could be made to the 8 reasons (set out above) that an employer can legitimately refuse a flexible working request.

Whilst there is no discussion about the reasons for refusing a request being fundamentally changed, the consultation seeks to determine whether the business reasons are still applicable in their current form.

3. An employer may be required to suggest an alternative arrangement, if unable to grant an employee’s flexible working request, rather than simply refusing it.

The consultation will determine whether employers should be required to demonstrate that they have considered alternatives before refusing to grant a flexible working request. The idea being that where a compromise can be achieved the employment relationship will be strengthened and more beneficial to both parties.

Whilst I consider that this would be a positive change to implement, there is no doubt employers will find this more onerous, particularly if an employee can make a flexible working request from the very start of their employment.

4. Allowing more than one request to be made in a 12-month period.

At present employees can only make one flexible working request a year, however, the consultation paper will review whether this is the correct approach or whether it restricts those employees whose circumstances may change within the current timeframe.

The review will also look at the 3-month deadline for dealing with a flexible working request and whether this remains the correct approach.

If changes to either of these processes are implemented it will have a significant impact on employers, either because they could have the administrative burden of dealing with multiple requests from employees within a 12-month period and/or because they will have a shorter timeframe to reach a decision in respect of the request (assuming the 3-month deadline is shortened as opposed to extended).

5. Raising awareness of the existing right to request flexible working

The government want more employees to utilise the current framework for requesting flexible working and seeking a permanent change to their contract of employment, which reflects the requested change.

For the time being this is a consultation which you can take part in and share your views here: https://www.gov.uk/government/consultations/making-flexible-working-the-default

I do however recommend that employers have a flexible working policy withing their internal procedures which all managers understand and can refer to when an employee makes a flexible working request, this will minimise the risk of potential claims arising from the way you handle the request or if you decide to refuse such a request.

We will of course keep you updated on the outcome of the consultation and of any legal changes as a result.

If you have any queries about flexible working requests and how to deal with them, please do not hesitate to contact myself or a member of the team on 01983 897003, and we will be more than happy to assist.

Photo by STIL on Unsplash