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HCR Law Events

12 January 2023

Flexible working consultation: the government’s response and what it means for schools

The government has published its response to last year’s consultation on updating flexible working laws.

In recent years and particularly since the Covid-19 pandemic, there has been a rise in the number of employees across the UK working flexibly. Working arrangements in 2022 no longer mirror those that applied when the legislation relating to flexible working first came into force.

Last year’s consultation proposed to update the law in this area to make flexible working the default. The government’s response confirms that several changes will be made to the current legal framework.

The key points from the response are as follows:

  • Employees will have the right to request flexible working from day one of their employment. Currently, employees can only request flexible working under the statutory procedure if they have 26 weeks’ service. It is emphasised this is a right to request and not a guaranteed right to have, or be granted, flexible working
  • Employees will be able to make two requests for flexible working in a 12-month period, instead of one as is the case currently
  • The reasonable timeframe within which employers must determine flexible working requests will reduce from three months to two
  • Where an employer intends to reject a request for flexible working, there will be a new duty to discuss whether any alternative forms of flexible working are available
  • The procedure for making a flexible working request will be simplified, with employees no longer having to set out in their application how their request might impact the employer

While the proposal to make flexible working a day one right was heavily supported by individuals and business representatives (91% of all respondents being in favour), 7% of respondents did raise the concern that such a right may be disruptive and cause operational challenges in some sectors.

This includes the education sector, where teachers are required at very specific times. The government has nevertheless concluded that it is proportionate to make the right to request flexible working a day one right.

One aspect of the current statutory framework that will not change, however, is the eight business reasons currently available for refusing a flexible working request. These will remain as follows:

  • The burden of additional costs
  • Detrimental effect on ability to meet customer demand
  • 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

Legislation will be required to implement these changes and there is currently no timetable for this. We are therefore unable at this time to state when these changes will come into effect. However, certain of the changes will be implemented through a Private Members’ bill which has government support.

What this means for schools

With these changes, all employees, irrespective of service, will be able to make a request for flexible working from day one of employment. Schools will need to reasonably consider such requests and, where a request is refused, give business reasons as outlined above and consider alternatives.

The changes set out in the response paper will require primary or secondary legislation. Once the timetable for implementation is clear, however, schools will need to update their existing flexible working policies to reflect the changes. We will inform schools when there are developments, including any updates in relation to the Private Members’ bill.

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About the Author
Oliver Daniels, Partner

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