With the difficulties that employers are facing in attracting and retaining workers, flexible working has become a key means not only to attract more workers, but to keep existing workers happy and even to encourage older workers to retire later. Following a consultation with a wide range of stakeholders, the UK government has now set out responses to the proposals to amend the right to request flexible working.
Consultation proposals and responses
- Making the right to request flexible working a day one right
The government’s response is that greater access to flexible working would support both employers and employees. Employees who wish to return to the labour market but are limited by established working patterns would be encouraged to return by a day one right. Employers in turn would achieve greater access to a wider pool of talent that could also bolster diversity in the workplace. The government concluded that it would be a proportionate step to make the right to request flexible working apply from the first day of employment. However, they note that, in certain sectors, this could give rise to some challenges logistically, so the right would remain a right to request flexible working and not a guarantee that the request would be granted.
- Refusing flexible working requests
Some individuals felt that the list of business reasons for refusing a flexible working request is too broad and should be reduced, while some employers felt that the list should be broadened and that each of the current reasons remained valid. Bearing in mind that a change to the permitted reasons could lead to less clarity, the government will retain the current list of business reasons without changes. The list of acceptable business reasons for refusing a flexible working request will therefore remain as follows:
- 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 is a lack of work to do during the proposed working times
- The business is planning structural changes
- Consulting with employees about their requests
There was a large degree of support for a process whereby an employer who is rejecting a statutory flexible working request should show that they have considered alternative arrangements. There were also concerns that alternative arrangements should not be proposed without consultation with the employee. As such, the conclusion is that employers should be required to consult with their employees as a means of exploring available options before they reject a flexible working request.
- A more responsive process for making and administering requests
With the aim of supporting the overall policy objective of normalising flexible working, the government has concluded that employees should be able to make more requests and that employers should respond more swiftly to them. As such, they will be taking forward changes permitting two flexible working requests in a 12-month period (instead of one), and a shorter time frame of 2 months for employers to respond.
- Employment protections
Some organisations felt the existing requirement for employees to set out how their employers could deal with the effects of their flexible working requests on the employer’s business, could lead to unfair treatment. The government intends to continue to encourage employers to engage with employees to jointly understand the impact of flexible working requests on their business. However, they will remove the requirement for employees to set out how the effects of their flexible working requests might be dealt with.
- Requesting a temporary arrangement and informal flexibility
The government recognised the need for clearer guidance and greater awareness about the ability to make temporary requests for flexible working. It will be developing enhanced guidance in relation to this to raise awareness and understanding of how such requests can be made and administered. It will also be launching a call for evidence on how informal flexible working operates in practice.
Moving forward
Employers should keep an eye on our newsletter for updates on the new legislation. It will, of course, be important to adapt procedures to remain compliant and some employers may see an advantage in reviewing their approach even before that. The proposed changes are centred on employees and employers having constructive and open conversations to find flexible working arrangements that work for both parties.
If you would like to discuss anything in this article, or would like guidance from an employment perspective, please contact a member of our team.
