New Government proposals to strengthen the right to request flexible working
In response to its ‘Making Flexible Working The Default’ Consultation (the “Consultation”) published on 5 December 2022, the government set out a raft of new measures designed to improve the existing framework for the right to request flexible working which it anticipates will extend the right to an additional 2.2 million people.
The current law
Under the existing statutory framework, all employees have the right to request flexible working provided they have 26 weeks’ continuous service, and only one request can be made in any 12 month period. Employers currently have three months in which to respond to a flexible working request and can refuse such a request for one of eight business reasons, for example if the flexible working arrangements requested would place an additional costs burden on the business or negatively affect its ability to meet customer demand.
New measures following the Consultation
Notable measures the government has committed to introduce include:
- the removal of the requirement for 26 weeks’ continuous service making the right to request flexible working a day one right;
- allowing employees to make two flexible working requests in any given 12-month period as opposed to one;
- reducing the time in which an employer has to respond to a flexible working request from three to two months;
- placing an obligation on an employer to consult with an employee to explore all alternative options before rejecting a flexible working request; and
- removing the requirement for employees to set out the business case for flexible working and making this a more collaborative process to be engaged in by both the employer and the employee.
Whilst the planned changes set out above are likely to be welcomed by business and individuals alike, given the broad support they received in the Consultation, interestingly, the government opted to retain the status quo with respect to the eight business reasons for refusing a flexible working request. This is perhaps surprising, given that 62% of respondents to the Consultation did not believe that the reasons for refusing flexible working remained valid. However, that figure masks a sharp divergence of opinion between the individual respondents and the business respondents. The individual respondents largely supported a reduction in the list of business reasons for refusing a flexible working request on the basis that the current list is too broad, making it too easy for employers to refuse flexible working requests. In contrast, the majority of business respondents felt that the reasons remained valid. Given the lack of consensus and the unclear picture this presents, the government has confirmed that it will retain the current list of business reasons for refusing a flexible working request.
It is also notable that the government emphasised in its response that this is a ‘right to request’ and not a ‘right to have’, which critics may argue does not go far enough to promote flexible working. So, while the move to make this a day one right (to request) is significant, the retention of the various and broad grounds for an employer to refuse mean that it remains a right with limited teeth for employees. Of course, where an employee has a protected characteristic ground for making the request (e.g. they are disabled or have child-care responsibilities), then refusal may constitute indirect discrimination (already a day one right) unless the employer can justify its refusal, and, to do that, they will need to go beyond simply identifying one of the eight statutory reasons under the flexible working regime.
Timetable
The current timetable for implementing the measures set out above is currently unknown, although the majority of the proposals (save for the day one right) are likely to receive a statutory footing in the Employment Relations (Flexible Working) Bill, which is currently making its way through Parliament. The day one right, however, will be introduced by secondary legislation ‘when Parliamentary time allows’, so it remains to be seen when what is arguably the most significant new measure will be implemented.
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