Flexible working: Government proposals for making flexible working the default

The Government has launched its long-awaited consultation on flexible working.

Although described as a consultation on making flexible working the default, it has no plans to turn the current ‘right to request’ flexible working into a ‘right to have’ flexible working.  

What are the five proposed changes?

The consultation sets out five proposals for reshaping the existing framework:

• Making the right to request flexible working a day one right
• Reviewing the eight business reasons an employer can rely on for refusing a flexible working request and considering whether they all remain valid
• Requiring an employer to suggest alternatives if it is not able to agree a flexible working request
• Reviewing the administrative processes underpinning the right to request flexible working. The Government is considering whether an employee should be able to make more than one flexible working request in any 12 month period and whether the three-month deadline for an employer to respond to a flexible working request remains appropriate
• Allowing employees to request a temporary arrangement 

As well as changes to the statutory framework, the Government will:

• Invite the Flexible Working Taskforce to consider how to move on from the immediate response to Covid-19 and make the most of lessons learnt over the last 18 months
• Launch a separate call for evidence in due course to consider how to secure a genuinely flexible working-friendly culture across and within organisations 

Day one right to request flexible working

Currently employees can only make a statutory flexible working request once they have been employed by their employer for 26 weeks. The Government considers that requiring a qualifying period of employment suggests that flexible work working is a perk and something that has to be earned, rather than the default position. The Government therefore proposes to allow employees to request flexible working from day one. It hopes that as well as enabling more employees to request flexible working, this will encourage employers to consider flexible working options early in the job design and recruitment process. This, in turn, will give employees more confidence to request flexible working.

In 2019, the Government consulted on whether employers should be required to state in job adverts whether a job is open to flexible working. It has decided against this, noting that many of those responding to the consultation considered this would simply drive the wrong response from those employers who are not culturally ready for flexible working – they would simply say ‘no’. It considers that making a flexible working a day one right could be a better option and help deliver the culture change needed. 

Reasons for refusing a flexible working request

The current legislation sets out eight business grounds on which an employer can refuse an employee’s flexible working request. These are:

• 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’s ability to meet customer demand will be negatively affected
• There is a lack of work to do during the proposed working times
• The business is planning structural changes

The Government is broadly content that these reasons do not present a disproportionate barrier to flexible working and does not see the need for these to be changed fundamentally. However, it asks whether all of these reasons remain valid reasons for rejecting a request.  

Should employers be required to suggest alternatives?

Currently an employer that wants to refuse a flexible working request simply has to give one of the statutory reasons why it cannot accommodate the request. The Government is considering whether to require employers to set out that alternatives have been considered when rejecting a request. For example, if an employer cannot make a change permanently, it could look at making it for six months.  Similarly, if it cannot accommodate a particular working pattern, it might consider an alternative or if an employer cannot make a change on all working days, it could look at doing so on some working days only.  It seeks views on whether employers should be required to show that they have considered alternative working arrangements when rejecting a statutory flexible working request. 

Administrative processes

Currently employees cannot make more than one statutory flexible working request in any 12-month period. The Government wants to ensure that the legislation is not placing unnecessary barriers for employees whose personal situation may have changed within 12 months, for example newly disabled people or new parents.  It is therefore considering whether to remove this limit and allow employees to make more than one request in a 12-month period. It asks for views on this and on how many request an employee should be able to make.

Under the current framework, employers have to respond to an employee’s flexible working request within three months. The Government is seeking views on whether this period should be reduced and if so what period should be allowed.  

Requesting temporary changes

The Government recognises that people may need extra flexibility at particular times in their working lives on a temporary basis. Although the current regime does not prevent temporary arrangements being agreed, the Government considers that the ability to request a contractual change for a defined period of time is under-utilised.  It asks whether people are aware that they can make a time-limited request under the current legislation and what would encourage employees to make such requests.  

The consultation on making flexible working the default closes on 1 December 2021 and you can respond online here.