Right to request flexible working open to all employees under new government plans

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Employees may be able to request flexible working from the day they start a new job, a move which the government hopes will help reshape the way we work in a post-pandemic world.

On 23 September 2021, the government launched a consultation paper on making flexible working the default, which seeks people’s thoughts on how we can better implement flexible working rights for UK employees which will, in turn, allow the government’s ambition to tackle the longer-term challenges of economic recovery, post-pandemic, and ensure flexibility of the labour market.

Currently, employees with 26 weeks or more of continuous service can request flexibility in regard to their working hours and days as well as the ability to work from home and job sharing. Under new plans proposed by the government, these rights would be extended to all employees, regardless of the length of their employment.

Background to the consultation

In April 2003, the UK government first introduced the right to request flexible working for parents and certain other carers. The right included requesting a change to work location, the number of working hours, and the associated working pattern. In 2014 this was extended to all employees with 26 weeks of continuous service.

The government’s 2019 manifesto committed to encouraging flexible working and the Covid-19 pandemic has made the need for flexible working ever more prevalent. But the data shows there’s still some way to go in order to make flexible working accessible for all.

Future flexibility

The government’s recent consultation suggests and seeks comment on, five changes to better the current legal framework on flexible working, which will allow flexible working to become the default position. In summary, it considers:

1. Should the right to request flexible working be available from day one?

The objective of this change would be to bring more employees into the scope of the legislation. It is suggested that it will help to encourage certain behaviour changes from employers so that they consider flexible working options early in the job design/recruitment process and give employees more confidence to make such a request.

2. Do the eight business reasons for refusing a request for flexible working remain valid today?

The current legislation provides a set of business grounds on which an employer can reject a statutory request to work flexibly. 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’ 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 consultation is seeking people’s views as to whether, especially considering the mindset changes brought about by the pandemic, these reasons for denying flexible working requests remain valid today.

3. Should an employer be required to suggest alternatives, where possible?

The consultation wants to ensure that the legislation genuinely supports an informed discussion between the employer and employee regarding flexible working arrangements. If an employer feels that an employee’s request is not possible, there might be a way to find another option. The consultation proposes that working together to negotiate a compromise can help promote stronger working relationships and deliver more of the employer benefits flexible working can drive.

4. Should there be a change to the administrative process underpinning flexible working rights?

Currently, an employee may make one statutory request for flexible working every 12 months and an employer has three months to consider whether that request can be accommodated. The consultation seeks thoughts as to whether more than one request can be made in any 12-month period and whether a three-month turnaround could be made shorter, whilst considering the administrative burden this may place on employers.

5. Should there be a right to request a temporary flexible working arrangement?

This right is already available to employees under current legislation; however, the consultation proposes that this is under-utilised and seeks people’s thoughts on what would encourage employees to take advantage of this right.

What else is being suggested?

The consultation sets out other steps the government proposes to take to help make flexible working the default. The Flexible Working Taskforce (Taskforce) has been reconvened to consider how to move on from the immediate response to the pandemic and make the most of the lessons we have learnt during it to ensure the best working practices as we all return to working. The Taskforce is also considering how to secure a genuinely flexible working friendly culture across organisations which is set out in greater detail within the consultation.

The government also intends to launch a call for evidence looking at the sorts of ‘extra’ flexibility people may need to help them live their lives in the best way they can, both at work and at home. It will explore the need for ‘ad hoc’ and informal flexibility and how this can best be supported. The consultation seeks people’s suggestions for what ‘ad hoc’ and informal flexible working may consider.

The consultation is open until 1 December 2021, so we await the government’s response after that date. You can submit your response here.

If you need employment advice in regards to flexible working, please call Lisa Kelly on 0191 211 7897 or by email at  [email protected]