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Are flexible working requests about to become more difficult for employers?28 September 2021

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On the 23 September 2021, the UK government published an open consultation, ‘Making flexible working the default’, which considers five ways in which the current legal framework for making flexible working requests could change. The consultation will close on 1 December 2021 and can be found here.

We look at what the consultation’s proposals could mean for employers, including:

  • making the right to request flexible working a ‘day one right’;
  • whether the current eight business reasons that employers have for refusing flexible working requests remain valid;
  • requiring employers to suggest alternatives and reach a compromise with employees;
  • the administrative process underpinning the Right to Request Flexible Working; and
  • requesting a temporary arrangement.

"While those employers who have embraced hybrid working or a completely remote working style may question the requirement for new legislation, the consultation highlights inequalities among the UK workforce."

While those employers who have embraced hybrid working or a completely remote working style may question the requirement for new legislation, the consultation highlights inequalities among the UK workforce. Only 47% of the UK’s entire workforce were working from home during the lockdown in April 2020. Over half of the UK’s working population did not have the option to work from home during the pandemic. In addition, flexible working doesn’t just relate to working from home and may incorporate shorter working weeks or compressed hours.

There are also times when employees may require flexibility unexpectedly – to reflect this, the Government has announced that it will be asking for evidence ‘looking at the sorts of ‘extra’ flexibility people may need to help them live their lives in the best way they can’. This exercise will ‘explore the need for ‘ad hoc’ and informal flexibility and how this can best be supported’. Those responding to the consultation are able to share their suggestions on this point.

Day one right

If the law changes employees would not need to have been in employment for at least 26 weeks before making a flexible working request. They could request to work flexibly from the first day of their employment.

Administrative process

Currently, an employer has three months to consider a request, the reasoning for which is to acknowledge the challenges accommodating a request may bring. In looking to make flexible working the default, the Government is considering whether to expedite the process to the benefit of the employee.

The current legislation allows employees to make one request every twelve months. But for those employees who have made a request which was denied and, for example, become a parent within that same year, they have no statutory right to make a further request. The Government is therefore looking at the option to allow more than one request per year to recognise that personal circumstances can change quickly and that the way employees work may need to adapt to this.

Business reasons for refusing a request

There are currently eight reasons employers can use to refuse a request, including a lack of work during proposed working times and the negative affect on quality or performance.

The proposal aims to review whether those eight reasons remain valid following Covid-19, whilst pointing employers to data signifying the desire for flexible working. It highlights that nine in ten employees see flexible working as a key motivator to their productivity at work but counters this strong statistic with the caveat that where there is a sound business reason, employers should still be able to decline a flexible working request.

Compromise rather than outright refusal

If a flexible working request cannot be accommodated, the consultation proposes that employers should be making suggestions to reach a compromise that works for both parties, rather than simply denying the request outright under one of the reasons for refusal.

"The consultation also acknowledges that some employees may only require a temporary change in work pattern. This provision is already available under existing legislation, but the consultation indicates that this is ‘under-utilised’ and asks what would encourage more employees to make use of this provision."

Temporary flexible working arrangements

The consultation also acknowledges that some employees may only require a temporary change in work pattern. This provision is already available under existing legislation, but the consultation indicates that this is ‘under-utilised’ and asks what would encourage more employees to make use of this provision.

Managing requests

It is clear the employees want flexibility and that Covid-19 has proven that it can work. Employers can therefore expect to receive more flexible working requests to reflect the changes people have made in their lives over the past 18 months.

It will be a challenge for employers to deal with these requests fairly and consistently. Employers may need to use their discretion to prioritise requests, either on a first come first served basis, or by creating objective criteria which look to rank requests based on reasons and evidence.

Unpaid carer’s leave

Although the date when the right will be introduced is still unknown, the Government has also confirmed that it will introduce a ‘day one’ right to unpaid carer’s leave.

Carers will be able to take one week of unpaid leave per year, irrespective of their length of service.

Employer’s will not be able to deny a request but will be able to postpone it if the ‘operation of business would be unduly disrupted’.

Key takeaways

  • Soon employees could have the right to work flexibly from the first day of their employment. Employees may want to work flexibly, so engaging in discussions to find a practical solution that works for both the employer and employee could be beneficial;
  • Employers will need to review their existing practices and/or adopt a policy to manage requests fairly and appropriately, as it seems inevitable that any change to the law will prompt a further rise in the number of flexible working requests employers receive;
  • The current administrative process gives employers three months to deal with a request – the consultation suggests that time period may be reduced;
  • Temporary arrangements are already available under existing legislation and should be better utilised and particularly if there are more flexible working arrangements and more requests for employers to manage; and
  • Carers could soon have the right to unpaid carer’s leave.

Trainee Solicitor Amy Tully also contributed to this article.

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