This month, the government launched its consultation: “Making flexible working the default”. The consultation covers a number of changes to the existing flexible working legislation, including making the right to request flexible working a ‘day one’ right (as opposed to the current requirement to have 26 weeks’ continuous service). We explore the key elements of the consultation and what it means for employers.

What is the current law on flexible working?

Currently, the law states that employees have to have at least 26 weeks’ continuous employment to request flexible working hours. The employees who are entitled to this are only allowed to make one request in any 12-month period. The eligible employees can request a change to:
The hours they work

  • The times that they are required to work
  • The place of work (working from home or from the employer’s workplaces)

The employer is entitled to a three-month period to notify the employee of their decision of their request (this can be extended by agreement). The employer must deal with the application in a reasonable manner, and they can only refuse a request for one (or more) of these eight reasons:
The inconvenience of additional costs

  • Damaging effect on the ability to meet customer demands
  • Inability to reorganise work among existing staff
  • Inability to recruit additional staff
  • Negative impact on quality
  • Detrimental impact on performance
  • Deficiency of work during the periods the employees proposes to work
  • Planned structural changes

What is the consultation proposing?

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

  • Making the right to request flexible working a ‘day one’ right
  • Whether the eight business reasons for refusing a request all remain valid
  • Requiring the employer to suggest alternatives if they decide to refuse a request
  • The administrative process strengthening the right to request flexible working
  • The right to request a temporary flexible arrangement

The consultation includes background and context on each of these areas and number of questions on which it is inviting responses.

What else does the consultation cover?

The consultation document also asks for views on making flexible working the default.

  • The government will invite the “Flexible Working Taskforce (a partnership across business groups, trade unions, charities and government departments) to consider how to move on from the immediate response to Covid-19. Moreover, how to make the most of the lessons learnt over the last 18 months as more people start to return to the workplace and as employers respond with new approaches to working.
  • The government will consider how to obtain a ‘genuinely flexible working friendly culture across and within organisations’. As part of a separate exercise, it will start 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”. The call for evidence will explore the need for ‘ad hoc’ and informal flexibility and how this can be best supported.
  • The conference document also analyses the responses that were received on behalf of the July 2019 consultation on the Good Work Plan.

What does this consultation mean for employers?

Nothing has changed for now –  however, it does indicate that changes are on their way (for example, the removal of the 26 weeks’ service requirements), therefore employers should be mindful and consider the proposed changes when thinking about their future hybrid working or other working arrangements.

Employers should also note that although the title of the conference is “Making flexible working the default”, the changes are about making the right to request flexible working a right from day one. This, therefore, meaning it is the right to request which is the default, not actually the flexible working arrangements..

You can rad the full consultation paper here.

27th September 2021

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