Changes to flexible working legislation – will flexible working become the default?

The Covid-19 pandemic resulted in a significant shift in working arrangements; employees across the UK became accustomed to working from home, hybrid working and more flexible hours.

Despite the various lockdowns being lifted it became clear that, for the majority, working in an office Monday to Friday was at an end and that employees were benefitting from flexible working arrangements.

The changes

The changes to working practices meant that it was almost inevitable that there would be changes to the existing flexible working legislation. The government commissioned a ‘Making flexible working the default’ consultation last year and, because of its findings, has proposed the following changes:

• An employee’s right to request flexible working will be available from day one of employment, rather than the current 26 weeks. The government emphasises that this remains only a right for an employee to request flexible working, not a right to have a flexible working arrangement
• Employees will be allowed to make two requests within a 12-month period. At present, employees are limited to making one request within a year, giving them less chance of being able to respond quickly to changes within the employer’s business which might allow a flexible working arrangement
• Employers will now have two months, rather than the current three, to provide a decision to the request
• There will be a new duty on an employer to discuss alternatives to the request. This means if the employer intends to reject the request, it must consult with the employee to discuss whether there are alternative forms of flexible working available
• The procedure for requesting flexible working will be simplified. Employees will no longer have to consider and set out how the effects of their flexible working request might impact upon the employer
• Further guidance will be developed to give employees greater awareness and understanding of how to make requests for flexible working

Reasons to refuse a request

Despite making it easier for an employee to make a flexible working request, an employer still has the right to refuse by relying on one or more of eight ‘grounds of refusal’. Those eight reasons will remain unchanged and include, amongst other things:

• The detrimental effect on ability to meet customer demand
• The inability to reorganise work among existing staff
• The burden of additional costs

If the employer considers that one or more of the eight grounds apply, they are permitted to refuse the request.

It is advisable for employers to provide written reasons for turning down a request as this may assist with appeals against the decision and if the employee brings tribunal proceedings. Employers should also note the proposed change which will require them to consult with employees about any alternative form of flexible working if they intend to reject the initial request.

Summary

The proposed legislation could result in flexible working becoming the default working arrangement between employer and employee. There will likely be a need for the employer and employee to engage in more constructive discussions and explore a wider range of options regarding working arrangements.

The government hopes that employees will be able to obtain increased balance between their personal and working lives. They believe that employers will benefit by attracting more applicants, in turn raising productivity and increasing the motivation levels of their employees. The response has also been provided at an important time due to the current cost-of-living crisis, as people may need to adapt their working arrangements to cope financially.

The government has not yet set out a timetable as to when these changes will be implemented, and we will update this guidance when it does. Despite this, employers should ensure that they review their current policies relating to flexible working to prepare for any changes to flexible working arrangements.

Employers will also need to consider the risk of discrimination – which will depend upon the employee’s reason for making the flexible working request – and unfair dismissal claims against them if they fail to comply with the law. We recommend for employers to take legal advice when faced with a flexible working request and to ensure compliance with the law.