Flexible Working Rights: Will The Government’s Consultation Amount To Much?

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Flexible Working Rights: Will The Government’s Consultation Amount To Much?

Flexible Working Rights: Will The Government’s Consultation Amount To Much?

The government has started its consultation* on highly anticipated plans to strengthen flexible working rights, but despite greater workforce pressure for employers to accommodate this in the post-pandemic world, the reforms look set to be modest at best.

Under the proposals, employees would have the right to request flexible working from ‘day one’ of their employment, rather than waiting for 26 weeks as is currently the case. They would not be able to apply for flexible working in advance of starting their job, unless their employer permits this.

Currently, employees with at least 26 weeks’ continuous service can make one statutory request for flexible working each year (the consultation explores whether employees should be allowed to make flexible working requests more often than this). Employers can refuse the request, but the refusal must be based on one of the eight prescribed reasons set out in the Employment Rights Act 1996:

  • extra costs that will be a burden on the business;
  • the work cannot be reorganised among other staff;
  • people cannot be recruited to do the work;
  • flexible working will negatively affect quality;
  • flexible working will negatively affect performance;
  • the business’ ability to meet customer demand will be negatively affected;
  • there’s a lack of work to do during the proposed working times; and / or
  • the business is planning structural changes.

Notably, evidence from the pandemic has suggested that women have been disproportionately affected by childcare burdens. Therefore, refusals to allow flexibility because of childcare duties is likely to open up the possibility of discrimination claims.

"As part of the consultation, the government asks whether the eight business reasons all remain valid and fit for purpose."

They also seek views on requiring employers to suggest alternative flexible arrangements when refusing any request, and whether employees and employers are aware of the option for requesting a temporary flexible arrangement. The remedies for non-compliance with the rules on flexible working requests do not look set to change.

On the one hand, employers are likely to welcome more subtle changes as opposed to larger scale reform of flexible working rights. A ‘one-size-fits-all’ approach is not realistically achievable, since the amount of flexibility available will always depend on the nature of the employee’s role and the needs of the employer’s business. On the other hand, campaigners argue that tweaking the existing regime does not go nearly far enough for the government to deliver on its 2019 manifesto pledge for flexible working as a default.

Overall, even if the proposals are eventually implemented (which could be as late as 2023), rights regarding flexible working will remain as a ‘right to request’ rather than a ‘right to have’ for the time being.

The consultation is open until 1 December 2021.

Get in touch

Should you need any assistance in relation to flexible working requests then please do not hesitate to get in touch with Andra Stanton.

Our Employment team provides the full range of employment services to start ups as well as to recognised household names. We work proactively to develop the best strategies for you to deal with the complex issues that arise from employment law.

*Open consultation: Making flexible working the default