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Work Matters: an update on the reforms proposed to the statutory flexible working regime

The Government wants to build a ‘world class approach’ to flexible working and has announced various changes to the current statutory procedure as a result.

These changes include:

  • giving all employees the right to make a flexible working request from day one of their employment;
  • allowing employees to make two flexible working requests in any 12 month period; and
  • reducing the time limit for an employer to respond to a flexible working request from three to two months.

ANALYSIS

Flexible working - the current position

All employees with at least 26 weeks' continuous service have a statutory right to make a flexible working request under the Flexible Working Regulations 2014 (the Regulations). The request could be for a change to hours of work, to start or finish times or to a place of work (for example, a request to work from home). However, employees can currently only make one request per year under the statutory regime.

To make a request, employees must apply in writing and:

  • say they are making the request under the flexible working legislation;
  • specify the change they would like to make;
  • give a date when they would like the change to take place;
  • explain what effect, if any, they think that the change will make to their employer and how this could be dealt with;
  • state whether a previous request has been made by the employee to the employer and, if so, when; and
  • date the request.

Employers must consider the request in a reasonable manner and confirm whether or not they agree to the request within three months of receipt of the employee's application (unless the employee agrees to an extension). This time period includes any appeals.

The employer is able to refuse the request for one or more of a specified list of business reasons (set out under section 80G Employment Rights Act 1996) which are:

  1. The burden of additional costs.
  2. Detrimental effect on ability to meet customer demand.
  3. Inability to reorganise work among existing staff.
  4. Inability to recruit additional staff.
  5. Detrimental impact on quality.
  6. Detrimental impact on performance.
  7. Insufficiency of work during the periods the employee proposes to work.
  8. Planned structural changes.

An employee whose request is refused may complain to an Employment Tribunal (ET) in respect of this refusal or for breach of the statutory procedure. If the employee succeeds in such a claim, the ET will make a declaration to that effect and may also award the employee up to a maximum of eight weeks' pay (subject to the statutory limit on a week’s pay) and order the employer to reconsider the request. Usually any such complaint will be accompanied by another claim such as sex discrimination.

Government consultation and response

In 2021, the Government published a consultation on flexible working (“Making flexible working the default”) which set out proposals to amend the Regulations to encourage more flexible working. This consultation closed on 1 December 2021 (having received over 1,600 responses from employers and individuals).

The majority of responses were supportive of flexible working and the benefits it can bring - for example, by providing a better work/life balance and enabling older workers and those who are disabled to continue working. Also, employers identified a positive impact on their businesses, ranging from improved productivity and recruitment and retention of staff to reduced absences and better employee relations.

On 5 December 2022, the Government published the conclusions it drew from the consultation and announced the following reforms.

Reforms

The proposed reforms are to:

  • remove the 26 week qualifying period before employees can request flexible working. This means that employees will have the right to make a flexible working request from day one of their employment;
  • add a new requirement for employers to consult with the employee about other options (when it intends to refuse the original request);
  • allow employees to make two flexible working requests in any 12 month period, (rather than the one currently allowed);
  • reduce the time limit for an employer to respond to a flexible working request from three to two months; and
  • remove the requirement for employees to set out the effects of their flexible working request. The intention is to make it a joint responsibility for the employer and employee to understand the impact of the flexible working request.

Other requirements may be dropped (such as the requirement to date the application and state that it is made under the flexible working legislation) but the Government has not yet confirmed this.

That said, some aspects of the Regulations will not change. The Government has confirmed that:

  • it remains a right to request (rather than a right to have) flexible working; and
  • the current list of eight business reasons for refusing a request will not change.

The Government also intends “in due course” to issue a call for evidence on how informal or ad hoc flexible working currently operates in the workplace in practice. Although temporary requests are currently allowed under the Regulations, there is a lack of awareness about these. The Government wants to explore how to raise their profile and improve the take up and administration of informal requests - as these can help to deal with issues such as attending appointments and managing health issues. The Government also intends to develop enhanced guidance to help employees make such informal requests.

Timetable for change

Although the timetable for introducing these changes is unclear, the Private Members’ Bill which is likely to introduce the majority of the reforms (except making it a day one right) is already going through Parliament. As the report stage and third reading is scheduled for 24 February 2023, the Bill could well become law within the next couple of years.

In respect of making flexible working a day one right, the Government has said it will do so by secondary legislation “when parliamentary time allows”. However, it seems likely that the Government will aim to synchronise the timing with the rest of the reforms.

Fladgate comment

Although these legislative reforms are not imminent, we recommend that employers:

  • review their flexible working policies and practices and prepare for all necessary updates for when they do become law;
  • offer training on these changes to recruiting managers and others responsible for implementing flexible working practices; and
  • particularly progressive employers or those that embrace a flexible working culture as part of their core values might choose to embrace the changes by implementing them earlier than required.

The day one right to request flexible working in particular is intended to encourage applications in roles which are not obviously flexible. This change means employers should be thinking about flexible working options right from the start of the job design and recruitment process. Doing so, will help ensure that the recruiting manager can deal with questions about flexibility at interview stage and have a head start on dealing with a flexible working request which could be made the day the new recruit starts work. (That said, it remains to be seen just how many new starters will be sufficiently confident to make requests in the early stages of their new role, particularly during their probationary period!).

One change which managers should in particular be made aware of, is the need to actively consult with employees about potential alternatives if they are planning to refuse the original request. For example, if an employee requests to change their working hours on all days, the employer may wish to propose that the change is agreed for every other day only. This new requirement requires managers to think more widely than before, to avoid being on the wrong side of the law.

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