Changes to flexible working rights announced

Right for employees to request flexible working to become day one right

On 5 December 2022, the government announced that the right to request flexible working will be extended to all employees, from day one of employment.   The new law is part of a package of measures to be introduced by the government with the aim of “making flexible working the default”.

Currently the right to request flexible working is only available to employees who have worked for their employer for at least 26 weeks.   In addition, there are certain statutory requirements that employees and employer are required to meet as part of the process for dealing with the flexible working request.   However, following its consultation on “making flexible working the default”, the government has committed to not only removing the 26-week qualifying period but also to simplifying the process, to encourage open-dialogue between employees and employers about different, more flexible, ways of working.

The government proposals are as follows:

1. The right to request flexible working will become a day-one right, removing the current requirement for employees to have at least 26-weeks’ employment.

2. Employers will be required to consult with their employees, as a means of exploring the available options, before rejecting a flexible working request.

3. Employees will be allowed to make up to 2 flexible working requests in any 12-month period.  Presently employees can only make one request per 12 month period.  

4. The time limit for employers to respond to requests will be reduced from 3 months to 2.

5. There will no longer be a requirement for employees to set out how the effects of their flexible working request might be dealt with by their employer.

Making the right to request flexible working a day one right

During the consultation, the government reported that it received clear support from individuals and businesses alike for the removal of the 26-week qualifying period.  The general consensus was that this would help shift the perception away from flexible working being something that had to be “earned”, towards it becoming more of the “norm”, with the aim that this would encourage more conversations between employers and employees about flexibility at work.

It was also pointed out that, by making the right to flexible working a day-one right, and having employers and employees discuss and agree upon flexible working from the outset of employment, would attract people back into work who might otherwise have been unable to because of the need to work flexibly.   The potential benefits to employers of having a wider pool of talent to recruit from, was also highlighted.

There were concerns expressed by some businesses about how a day-one right could result in agreements about work arrangements being immediately re-opened after a job offer had been accepted, and how this could negatively impact on the employer/employee relationship before it had even started.   There were also worries that allowing employees to make a request within the first 6 months of employment could create logistical and operational challenges. 

However, the government’s conclusion was that, on balance, the right to request flexible working from day-one was the right step to take.    It also pointed out that the right was to request and not to have! 

This, of course, has always been a major criticism of the law by groups who have long advocated for more flexible working and better work/life balance for individuals.   It is likely, however, that the right to request will remain just that, for a long time, until flexible working becomes the “norm” rather than the default. 

Business reasons for refusal

The consultation also considered whether the “eight” business reasons that employers can give for refusing a flexible working request remained valid or whether they should be reduced or increased.    Although the majority of the respondents to the consultation considered they were no longer valid, there was a lack of consensus on what they should be replaced with so, in the end, the government decided to not make any changes and to let the eight business reasons remain intact!   

Consulting with employees about their request  

The proposal to require employers to consult with employees about their request, received resounding support during the consultation. 

It was pointed out that discussing a statutory flexible working request with an employee was consistent with the recommendations set out in the Acas code of practice on handling flexible working requests and therefore already recognised as good industry practice.

Accordingly, the government proposes to introduce measures to require employers to consult with their employees, as a means of exploring the available options, if considering rejecting their flexible working request.

Frequency of requests and time limit for responding to requests

In addition to removing the qualifying period for making a request, the government proposes to increase the number of flexible working requests that an employee can make in a 12 month period from 1 to 2 and to reduce the response period of employers from 3 months to 2.     

The main reason given in support for these changes was that an individual’s circumstances can change within 12 months and, if they do, this will require a quicker response to avoid negative outcomes for both employees and employers.  Examples given of life-events that could occur included becoming disabled, becoming a carer, losing someone close and becoming a parent.  

The main reasons given against making these changes included the potential administrative burden and the effect on productivity that could result from dealing with increased numbers of requests/repeat requests and having to respond to them within a shorter time period.

The government, however concluded that employees should be able to make two requests in any 12 month period and that employers should respond to requests more swiftly.  Such changes would be in keeping, it said, with its overall policy of normalising flexible working.

When will the changes come into force?

The changes will be introduced through legislation when “parliamentary time allows” – giving ample time to review your flexible working policy or to make sure you have one in place before the law comes into effect.     

If you would like any advice about making a flexible working application or dealing with one from an employer then we can help. Please do not hesitate to contact us for an initial free telephone call 01983 897003.

Photo by Dylan Gillis on Unsplash