For many employers the pandemic has led to a shift in mindset around flexible working, and various organisations are planning for a future in which staff will work flexibly at least some of the time. Building on its manifesto commitment to encourage flexible working, the government has published its consultation, Making Flexible Working the Default which is open until 1 December 2021.
In a separate response to the Carer's leave consultation, the government has also confirmed its future plans for carer's leave.
This briefing considers the government's key proposals on both flexible working and carer's leave.
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 consultation document sets out the following five proposals for consideration:
- making the right to request flexible working a day one right
This will bring more employees within the scope of the legislation. It would also encourage employers to consider flexible working options early in the job design/recruitment process and give employees more confidence to make a request.
The government does not, however, at this point in time plan to introduce a statutory requirement for employers to say in job adverts whether flexible working is available (a proposal which the government consulted on in its 2019 Good Work Plan: Proposals to support families).
- whether the eight business reasons for refusing a request all remain valid
The government does not believe that the current list of reasons for refusing a request needs to be changed but is asking for views from employers on whether this is correct.
- requiring the employer to suggest alternatives
To support an informed discussion between the employer and the employee, the government is seeking views on how practical it is to ask employers to set out, when rejecting a statutory request for flexible working, that alternative working arrangements have been considered.
- the administrative process underpinning the right to request flexible working
There are two proposals around the time limits that currently apply.
The first relates to the frequency that an employee can submit a request to work flexibly and whether allowing employees to make more than one statutory request a year will make the process more responsive for those employees whose personal situations change within 12 months.
Additionally the consultation considers the current three-month deadline for responding to requests and whether this strikes the right balance for the future.
- requesting a temporary arrangement
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 believes such requests are not used very often and asks what would encourage employees to make such requests more frequently.
Does the flexible working consultation say anything else?
The consultation sets out the role of the Flexible Working Taskforce, a partnership across business groups, trade unions, charities and government departments who will provide support to employers on their future approach to flexible working.
The 2019 Good Work Plan: Proposals to support families consultation proposed that employers with more than 250 employees would be required to publish their flexible working policies. The government will not be introducing a legislative requirement for a "one-size-fits-all" approach to publishing a flexible working statement or policy, but will continue to support this on a voluntary basis.
There will also be a call for evidence exploring the need for ad hoc and informal flexibility arrangements.
What is the government's response on carer's leave?
The government has confirmed that it will introduce a new day one right to one week of unpaid carer's leave each year for employees as soon as parliamentary time allows.
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.
