The proposed flexible working reform

The UK Government has proposed reforming and extending the statutory right to request flexible working, including the right to request flexible working from the first day of employment. It builds on the proposals published in July 2019 in the Good Work Plan: Proposals to support families, which were delayed as a result of the coronavirus (COVID-19) pandemic. However, as the pandemic changed working practices, the Government now wishes to continue with these proposed changes and has launched a consultation on this proposal on 23 September 2021.

 

What is flexible working?

Flexible working is any working arrangement that is different from the default or ‘normal’ arrangement in your workplace or from an employee’s previous arrangements. Flexible working includes arrangements like working from home, annualised or compressed hours, working part-time, term-time working and job-sharing.

 

How to make a flexible working request?

While employees don’t have an absolute right to work flexibly if the requesting employee has at least 26 weeks’ service then employers have a duty to handle requests to work flexibly in a reasonable manner.

To be able to apply for flexible working, the staff must:

  • be an employee (ie not a worker or consultant);
  • have worked continuously for the same employer for at least 26 weeks; and
  • have not made a formal flexible working request in the previous 12 months.

Employees can make such a request using a Flexible working request. Such a request sets out the employee’s proposed working pattern and suggests how the business can deal with any disruption as a result of the new working pattern.

 

Considering flexible working requests

If an employee has the right to make a flexible working request, employers should:

  • ask for the request in writing
  • consider the request fairly
  • discuss it with the employee
  • look at other options if the request is not possible
  • make a decision based on facts and not personal opinion
  • only turn down the request if there’s a valid business reason
  • give the employee a decision within 3 months of receiving the request

Accepting a flexible working request

If an employer accepts a request for flexible working, this will typically change the terms of the employment contract.

Any change to an employment contract should be recorded as a written variation.

When an employee’s terms of employment are varied, employers will also need to make sure that they comply with all legal requirements that apply to the situation, for example:

For more information, read Flexible working.

Refusing a flexible working request

Employers can refuse a request for flexible working but this must meet one of the eight allowed statutory reasons for refusal. These are:

  • the burden of additional costs
  • detrimental effect on the ability to meet customer demands
  • inability to reorganise work among existing staff
  • inability to recruit additional staff
  • detrimental impact on quality
  • detrimental impact on performance
  • insufficiency of work during the periods the employee proposes to work\planned structural changes

If a woman requests flexible working for childcare reasons, refusing the request may, in some circumstances, amount to sex discrimination. Similarly, if a flexible working request is made by an employee to accommodate health problems, employers must take particular care to avoid disability discrimination. Ask a Lawyer if you have any questions about this tricky area regarding flexible working requests.

 

What else should employers do?

Employers should put in place a Flexible working policy to help their business abide by the regulations and ensure that their employees understand the process of making and dealing with flexible working requests.

As flexible working requests are likely to contain personal and sensitive personal data (eg names and information about physical or mental health/condition) they must be processed (eg recorded and stored) in accordance with the employer’s Data protection policy and Employee privacy notice

For more information, read Flexible working.

 

What are the proposed changes?

The Government’s proposal includes: 

  • making the right to request flexible working a day one right (ie employers being able to make a request from the first day of employment);
  • requiring employers to respond to requests for flexible working more quickly than the current maximum of 3 months;
  • requiring employers to explain why a flexible working request was refused.

In addition to the above points, the consultation also seeks views on:

  • whether the eight business reasons for refusing a request all remain valid (especially in light of the changes brought about by the pandemic);
  • requiring the employer to suggest alternatives before rejecting a request (this is intended to support two-sided flexibility, with the starting point being a conversation between employers and employees about how best to balance particular work requirements and specific individual needs);
  • the administrative process underpinning the right to request flexible working (eg allowing employees to make more than one request per year to account for changes in personal circumstances); and
  • requesting a temporary arrangement (to make it easier for employees to request a time-limited flexible working arrangement, for example, to support the transition of a child from early years care into school).

The consultation is set to close on 1 December 2021 and will then be considered by the Government. Changes to the way in which employers are to deal with flexible working requests are likely to be introduced at some point in 2022. Employers should bear this in mind and continue to review their working practices, considering what worked well during the pandemic and what the effects may be on any new and existing flexible working arrangements.

 

Rebecca Neumann

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