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Changes made to flexible working requests

Dec 6, 2022

The Government has yesterday released the outcome of its consultation, Making Flexible Working the Default.

The Government’s response confirms the intention to introduce changes to current legislation regarding the right to request flexible working. This right is currently only available to employees with 26 weeks of continuous service. These employees can make applications to change their work location, working pattern and/or working hours.

The Government intends to take forward the following measures, which will require new legislation:

  • requiring employers to consult with their employees, as a means of exploring the available options, before rejecting their flexible request
  • allowing employees to make two flexible working requests in any 12-month period and requiring employers to respond to requests within two months
  • removing the requirement for employees to set out how the effects of their flexible working request might be dealt with by the employer

Following the consultation and through secondary legislation, the Government will:

  • make the right to request flexible working apply from the first day of employment
  • develop enhanced guidance to raise awareness and understanding of how to make and administer temporary requests for flexible working
  • launch a call for evidence to better understand how informal flexible working is adopted in practice.

The Government has not provided any timescales for the implementation of the above, but has indicated its support of a Private Member’s Bill, known as the Employment Relations (Flexible Working) Bill, introduced by Yasmin Qureshi MP, which passed its Second Reading on 28 October 2022. The Government will continue to support the Bill as it progresses through parliament.

The Bill will, if passed, implement the changes allowing for employees to make two flexible working requests within 12 months, and reduce the decision time for employers to two months. The Government will retain the current list of business reasons for refusal and not make any changes.

The reasons given provide some valuable insight in respect of the views on flexible working throughout the labour market. Whilst a majority of respondents were individuals (83%), many of the views were shared by employers. Respondents said that flexible working can be beneficial to employers, including supporting equality of employment opportunities and accessing the full range of skills and capabilities of the workforce. Generally, Respondents accepted that an employer’s ability to accommodate flexible working arrangements depends on the individual employee’s particular role and wider circumstances.

Other arguments presented by the Government show that wider research has shown that flexible working unlocks growth opportunities. Respondents said that making the right available on day one would help remove perceptions that flexible working is something that has to be “earned” rather than normal practice. The argument is that the right will encourage people to seek conversations with their employers about workplace flexibility.

The Government stated that many employers are already accepting requests for flexible working arrangements from day one, with nearly 70% of employer consultees confirming the same. The extension of the statutory right to day one of employment would bring the law in line with existing good practice.

The Government emphasised that no ‘one size fits all’ approach to work arrangements exists and that the legislation must remain a right to request, not an absolute right. The Government believes that early conversations about flexibility in the design, recruitment and appointment phases should be encouraged, and that these changes will both reflect and support that objective.

Many employers are already forward thinking with the idea of flexible working, this new proposed legislation would encourage other employers to take the issue more seriously. There are always lots of things to consider, but flexible working is clearly here to stay.

This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

Tom Hyatt

Tom Hyatt

Solicitor, Employment Law

t: 0118 989 8153
e: tom.hyatt@herrington-carmichael.com

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