Legal development

How flexible is flexible working about to become

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    Following the pandemic, many organisations have staff working flexibly at least some of the time. Building on its manifesto commitment to encourage flexible working, the government published its consultation, Making Flexible Working the Default in 2021 and has recently issued a response to that consultation.

    This briefing considers the government's key proposals on how flexible working is set to change, although the timing of introducing these amendments is still unclear.

    What is the current position on flexible working?

    All employees with at least 26 weeks' continuous service and who have not already made a statutory request within the last 12 months have a statutory right to make a request to change their hours of work, times of work and/or place of work (for example to work from home).

    An employer must consider the request in a reasonable manner and is able to refuse the request for one or more of a specified list of business reasons which includes, for example, the burden of additional costs or an inability to reorganise work amongst existing staff.

    All requests, including any appeals, must be considered and decided upon within a period of three months from first receipt of the employee's application (unless the employee agrees to an extension).

    An employee whose request is refused may complain to an Employment Tribunal on a number of grounds, for example that the decision wasn't reached within the relevant decision period or that the application was rejected for a reason other than one of the statutory grounds.

    What is the government proposing on flexible working?

    The government's response to the consultation document confirms the following:

    • the right to request flexible working will be a day one right

    The right to request flexible working will apply from day one of employment. The response confirms that the legislation remains a right to request, not a right to have.

    This will bring more employees within the scope of the legislation. Employers will also need to consider flexible working options early in the job design/recruitment process.

    This day one right will be introduced through secondary legislation when parliamentary time allows.

    • the eight business reasons for refusing a request all remain valid

    There will not be any changes to the current list of business reasons for refusing a flexible working request.

    • the employer will be required to look at other available options

    Before rejecting a flexible working request, employers will be required to consult with the employee to explore the available options.

    Primary legislation is necessary to introduce this employer requirement. The government has confirmed that it will continue to support the Employment Relations (Flexible Working) Bill, a Private Members' Bill as it progresses through parliament. This Bill requires employers to consult on the arrangements with the employee before refusing a request.

    • the new administrative process underpinning the right to request flexible working

    Employees will be able to make two requests in any 12-month period (up from one currently) and the employer's deadline for responding will be shortened from the current three months to two months.

    The requirement for employees to set out how the effects of their flexible working request might be dealt with by the employer will also be removed. There will, therefore, be a shift in responsibility from being only on the employee to set out the business case to employers engaging with employees to jointly understand the impact of their flexible working request.

    Again primary legislation is necessary to change these administrative processes. The Private Members' Bill (mentioned above) allows employees to make two flexible work requests in every 12 month period, and reduces the time period that employers have for considering a request to two months.

    • requesting a temporary arrangement is under review

    Currently a request can be made for a temporary flexible working arrangement to be agreed between the employee and employer which is for a defined, time-limited period.

    The government will introduce guidance and awareness-raising on how to make and implement temporary requests for flexible working. It also wants to understand more about how these less-formalised types of flexibility work in practice so a call for evidence will be issued in due course.

    Further information

    For more information on any of the issues raised in this briefing, please speak to your usual Ashurst contact or to any of the people whose contact details are given below.

    The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
    Readers should take legal advice before applying it to specific issues or transactions.

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