News & Insights

Flexible Working – the Government’s Response

Following a consultation on flexible working arrangements, the law governing flexible working may be set to change…

Between September and December 2021, the UK Government published a consultation setting out a series of proposals, aimed at better supporting employers and employees in agreeing appropriate flexible working arrangements. The consultation drew over 1,600 responses, and the Government has now published its own conclusions from the consultation.

As it stands the right to request flexible working is only acquired by an employee after 26 weeks of continuous service. However, following the consultation, the Government intends to make an employee’s right to request flexible working a day one right. The Government has emphasised that this will remain a right to request flexible working only, and that this will not entitle employees to flexible working itself. Nevertheless, employers will need to be conscious of their duty to consider all employees’ requests, regardless of their length of service.

Currently, employees can only make one flexible working request within each 12-month period. This is also set to change, such that employees will soon be able to make two flexible working requests within a 12-month period. Further, while employers previously had three months to respond to these requests, this response period will now be reduced to two months (including any appeal).  Employers should anticipate that the scale of flexible working requests made is therefore likely to increase and that the obligation to consider and process such requests is likely to be onerous in terms of management time.

The procedure to make flexible working requests is also set to be simplified. Employees will no longer need to set out how their flexible working request, if it is approved, might impact upon their employer. This will of course make it easier for employees to request flexible working. Such a change may also increase the burden on employers, who will now need to determine for themselves what detriment might be suffered by the flexible working. Despite this change, it seems that other “red-tape” is likely to remain in place; employees are likely to still need to ensure that they date their request, and that they expressly state that the request is being made under the flexible working legislation.

No changes are to be made to the eight reasons an employer can use to refuse a flexible working request.

Currently, these are:

  • Planned structural changes
  • Burden of additional costs
  • Quality or standards will suffer
  • Performance will suffer
  • They won’t be able to recruit additional staff
  • They won’t be able to reorganise work among existing staff
  • Detrimental effect on ability to meet customer demand
  • Lack of work during the employee’s proposed work times

This is likely to be a cause of some relief for employers, who might have expected these options to be curtailed somewhat. However, employers will soon be under a new duty to discuss alternatives to the flexible working request; such that, where the employer intends to reject the request for one of the above eight reasons, they must discuss with the employee whether there are alternative forms of flexible working arrangements that might be more appropriate.

No draft legislation nor timetable is set out in the Government’s response. However, the Government has extended its support to the Employment Relations (Flexible Working) Bill, which, if made law, would introduce the changes allowing employees to make two requests within 12 months and reducing the decision time to two months.  We therefore expect this legislation to be implemented in the foreseeable future and will provide further details when they become available.

If you would like help with drafting your flexible working policy or with dealing with flexible working requests, or you require any other employment advice, please get in touch at [email protected]