Right to request flexible working reforms: Practical implications for employers

Author: Stephen Simpson

The Government has put forward its proposals to reform the statutory right to request flexible working. What are the proposed changes and what impact will they have on how employers handle flexible working requests?

In its 2019 manifesto, the Government committed to promoting flexible working and, subject to public consultation, introducing measures to help to make flexible working the default unless employers have good reasons not to do so.

The Government launched its public consultation on 23 September 2021 to gather views on its proposals for changes to the right to request flexible working.

The proposed legislative changes would apply in England, Wales and Scotland. The right to request flexible working is set out in separate legislation in Northern Ireland.

Proposed changes

Right to request flexible working from day one of employment

Employees currently need 26 weeks' service to be entitled to request flexible working. The Government proposes to remove this service qualification, making the right to request flexible working a "day one right".

The Government hopes that this will:

• nudge employers towards considering flexible working options early in the job design/recruitment process; and
• give employees more confidence to make flexible working requests.

According to the Government, the pandemic has "revealed how external events (which may require flexibility at work to deal with) do not discriminate between employees with differing lengths of service".

The Government is stopping short of requiring employers to state in job adverts if flexible working is available for the role. It believes that removing the service qualification should be sufficient - see below for more on the Government's reasons for dropping this proposal.

Changes to administrative process for flexible working requests

Currently, an employee may make one statutory request every 12 months and an employer has three months to consider whether that request can be accommodated. The Government is consulting on whether these limitations need to be changed to build more dynamism into the process for making flexible working requests.

In relation to the limit of one statutory request every 12 months, the consultation puts forward the options of:

• keeping the current limit in place;
• allowing two requests every 12 months;
• allowing three requests every 12 months; or
• removing the limit on the number of requests an individual can make.

In relation to the three-month time limit for employers to deal with statutory requests, the consultation gives the options of:

• keeping the current time limit for employers in place;
• having a two-week time limit;
• having a time limit of more than two weeks but less than one month;
• having a time limit of more than one month but less than two months; or
• having a time limit of more than two months but less than three months.

Requirement to consider possible alternative arrangements

Currently, employers have only to state that a request to work flexibly cannot be accommodated and give the business reasons why. The Government is exploring the possibility of requiring employers that have concluded that a request cannot be accommodated to show that they have considered possible alternative working arrangements as a compromise.

For example, could the employer agree to a temporary, rather than a permanent, change to the employee's working patterns? If the employer cannot accommodate a particular part-time working pattern, could an alternative pattern be agreed? If the employer cannot make a change on all working days, could it look at making the change on some working days only?

The Government states that this requirement could support the aims of making flexible working the default for as many employers as possible, ensuring that the rules support an informed discussion between both parties and reduce instances of requests being immediately rejected.

However, the consultation acknowledges concerns at how practical and enforceable it would be to introduce a requirement for employers that reject a request to set out what alternatives have been considered.

Promoting use of temporary flexible working arrangements

The consultation highlights the issue of employers assuming that all flexible working arrangements must be permanent and under-utilising temporary flexible working arrangements. Under the current legislation, there is nothing to stop the parties from agreeing to a temporary arrangement.

For example, the employer and the employee could agree to a time-limited arrangement to:

• facilitate their child's transition from early years care into school; or
• support an elderly parent's move into a care home.

The consultation asks about awareness of temporary flexible working arrangements and what steps could encourage employees to make this type of request.

Proposed changes that have been dropped

"Making flexible working the default"

Despite the title of the consultation ("Making flexible working the default"), it is clear that the Government is not planning to require employers to default to flexible working as a matter of course.

Employees' entitlement remains the right to request flexible working, not the right to work flexibly. Ultimately, the decision as to whether to agree to a flexible working request is going to remain a matter for the employer, based on its business needs (see below).

Requirement for job adverts to state if flexible working is available

The Government has decided not to proceed with the introduction of a statutory requirement for employers to state in job adverts if flexible working is available for the role.

The Government is particularly concerned that this requirement would encourage employers to default to saying "no" to flexible working arrangements for particular roles.

It is hoped that making the right to request flexible working a "day one right", alongside the other proposals, will change the culture and lead to the inclusion of this in job adverts becoming the norm.

Wholesale changes to permitted business reasons for rejections

Currently, employers that are rejecting a flexible working request must ensure that the rejection is for one of the business reasons permitted by the legislation. The permitted business reasons are:

• the burden of additional costs;
• a detrimental effect on ability to meet customer demand;
• a detrimental impact on quality or performance;
• the inability to reorganise work among existing staff;
• inability to recruit additional staff;
• an insufficiency of work during the periods the employee wishes to work; and
• planned structural changes.

Employers are unlikely to face fundamental changes to these prescribed business reasons, which are very wide anyway. The consultation states that the Government is "broadly content that the current list of reasons for refusing a request do not present a disproportionate barrier to flexible working".

Requirement to publish flexible working policies

The Government had put forward the possibility of compelling employers with more than 250 employees to make public details of their family-friendly policies, including their flexible working policies.

However, the Government has decided not to introduce a "one-size-fits-all" legal requirement for employers to publish their flexible working policies. The Government cites concerns from employers that:

• they need to retain the flexibility to be able to adapt their flexible working policies to specific workplace scenarios and at any point in time, particularly those that employ staff across a variety of job roles; and
• there would be difficulties in enforcing this requirement, which would need a prescribed definition of what constitutes a policy and could "possibly tie the hands of businesses by requiring set flexible working policies or statements".

The Government has not yet ruled out proposals to require large employers to publish and report on their family-related leave and pay policies. It is due to review the impact of gender pay gap reporting in 2022 and will consider if this could be made part of gender pay gap reporting requirements.

The Government suggests that that this data could be accessed centrally through the gender pay gap reporting portal and could form a key part of an organisation's action plan to tackle its gender pay gap.