Flexible Working Consultation

Employee rights & disputes - KBL Solicitors

The government has launched a consultation aimed at making flexible working the default approach for employers and individuals in the future. Such changes, if implemented, will mean that every employee in Great Britain will be given the right to request flexible working regardless of the time served with their employer.

The consultation will be looking into a range of flexible working methods such as job sharing, flexitime, compressed, annualised and staggered hours, as well as phased retirement, not just working from home. It allows employees to balance their work and home life, including helping those who are managing childcare commitments or other caring responsibilities as well as ensuring that employees such as new parents or those with disabilities have access to more opportunities.

Research has shown that companies that embrace flexible working can attract more talent, improve staff motivation and reduce staff turnover, boosting their businesses productivity and competitiveness.

However, there are some circumstances where businesses will not be able to offer flexible working. The government is clear that businesses should still be able to reject a request if they have sound business reasons and will also respect freedom of contract rather than prescribing specific arrangements in legislation.

While the consultation focusses on contractual flexible working arrangements, the government recognises that people do not always need something so formal to help them balance their home and work life. A call for evidence will be launched looking at the sorts of informal flexibility people may need, for example, to attend a one-off appointment.

The consultation sets out five specific proposals:

1. Making the right to request flexible working a ‘day one’ right

Currently, employees can make a request to work flexibly under the statutory procedure only if they have worked for their employer for at least 26 weeks. The government believes that making request for flexible working available at the outset of the employment relationship will help encourage employers to consider flexible working options early in the job recruitment process and give employees more confidence to make a request. It is asking for views about whether the qualifying period can be removed and what benefits it might deliver.

However, it does not intend to propose a legal duty on employers to state in job advertisements whether they are open to flexible working.

2. Ensuring that the current eight business grounds for refusing a request remain valid

Employers who turn down a request to work flexibly under the statutory scheme must be able to point to one or more of the business grounds set out in the legislation. The government does not consider that these present a disproportionate barrier to flexible working and that these need to be changed. However, it wants to find out if the existing business reasons are still appropriate.

3. Requiring the employer to consider alternative if a request is refused

Currently, an employer can turn down a request if it has a relevant business reason. It does not have to consider alternatives to the ones proposed although, in practice, many employers do. The government wants to explore whether it is practical to ask employers to set out what alternatives may be suitable and viable when rejecting a request.

4. Reviewing the administrative process to consider allowing more than one request in a 12-month period.

Currently, an employee can make only one statutory request every 12 months and the employer has 3 months to consider that request. The government is considering removing that limitation so that employees can make more than one request each year to reflect changes to their personal situations.

It is also considering changing the 3-month time limit employers have to respond to a much shorter period. 3 months, in many circumstances is a very long time, especially if an employee is needing to implement changes almost immediately. On the other hand, less than two weeks does not leave a lot of time to consult with the employee. There needs to be a fine balance and this is what the government is consulting upon.

5. Requesting a temporary arrangement

Currently, if the employer agrees to an employee’s flexible working request, it will be a permanent change to the employee’s terms and conditions of employment unless that parties agree otherwise. The government is considering that the ability to request a temporary arrangement is under-utilised and it wants to know if businesses are aware that they can agree to short-term arrangements.

The Consultation closes on 1 December 2021. We will follow up with any additional information as and when it is released.

Carer’s leave

The government has also published a response to its consultation on carer’s leave. It has confirmed that it will introduce a “day one” right to carer’s leave which will consists of 5 days of unpaid leave per year for employees managing long-term caring responsibilities alongside work. The leave will be available to take flexibly, i.e. from half-day blocks to a whole week. This right will be introduced when Parliamentary time permits.