The UK government has this week published its response to the Department for Business, Energy and Industrial Strategy’s Consultation on Making Flexible Working the Default by setting out its own intentions and giving its nod of support to a Private Member’s Bill on the issue of flexible working.
What are flexible working requests?
For many of us in the post-pandemic world, some form of hybrid working has become the norm for many office-based roles. In times gone by however, the ability to work from home may have formed part of a more formal flexible working request.
The UK flexible working scheme give employees the right to ask their employer to consider a range of options such as working from home, job-sharing, compressed hours, flexi-time, part-time and term-time working.
These once atypical work patterns can give employees a better work-life balance and, with the current shortage in the labour market, some employers may find it necessary to offer flexible working patterns if they want to recruit and retain the staff they need.
What are the current rules on flexible working?
The current rules on flexible working requests are found in sections 80F to 80I of the Employment Rights Act 1996 (as amended) and the Flexible Working Regulations 2014 (SI 2014/1398) which, together, set out that:-
- employees can make a flexible working request after 26 weeks of continuous service;
- employees can only make 1 request in any 12 month period; and
- employers have 3 months to consider a request, discuss it with the employee (if appropriate) and notify the employee of their decision.
Employers are not obliged to accept flexible working requests and they can refuse requests on any of the following grounds:-
- the burden of additional costs
- detrimental effect on ability to meet customer demand
- inability to re-organise work among existing staff
- inability to recruit additional staff
- detrimental impact on quality
- detrimental impact on performance
- insufficiency of work during the periods the employee proposes to work
- planned structural changes
What are the new proposals?
During the pandemic, there were calls for flexible working to be a ‘day 1’ right for employees and, while there was some support for this proposal, the government hasn’t gone as far to support giving all employees the right to flexible working. Instead, it has said it supports giving all employees the right to request flexible working from day 1 of their employment.
The consultation response also sets out that:-
- employees will be able to make 2 flexible working requests within a 12 month period;
- employers will have 2 months to consider a flexible working request;
- there will be a new requirement on the employer to consider alternatives if the initial request is unworkable; and
- the requirement for employees to set out how the effects of their flexible working request might be dealt with by employers should be removed.
There is no draft legislation set out in the government’s response; however it has given its support to the Employment Relations (Flexible Working) Bill, proposed by Yasmin Qureshi MP (L) which has had its second reading in the House of Commons.
If the Bill passes in its current form, we will see some of the government’s recommendations come in sooner than others as it seeks to amend sections 80F and 80G of the ERA 1996 allowing an employee up to 2 applications for flexible working to the same employer during any 12 month period (although application second request cannot be made while the first is still proceeding).
The Bill will also reduce the decision period to 2 months and place a duty on the employers to consult with employees about their flexible working request before any request can be refused.
What impact will these changes have?
Even if all the proposals come into force, employers still do not need to accept flexible working requests. There are no proposed changes to the grounds of refusal set out above and it is still only a right to request, not a right to flexible working. The reality is also that many employers are offering the possibility of some flexible working at the point of recruitment and discussions with candidates about different working patterns are front and centre in a way, which was relatively unusual pre-pandemic.
That being said, these changes would help bring the statutory regime into line with the reality of the current UK job market. Employers need to consider whether they may risk pushing good staff away by resisting accommodation of working patterns which fit in with employees lives outside of work, whether that be for child care commitments, walking the dog at lunch or avoiding the lengthy commute.
If you would like to discuss this issue in more detail or get some guidance on your response to flexible working requests generally, please get in touch with a member of the Employment Team at Thorntons on 03330 430350.
