Flexible Working: Changes are coming

From September 2021 to December 2021, the Government ran a consultation: Making flexible working the default - GOV.UK seeking views from individuals and businesses on proposals to reform flexible working regulations as it recognised that:

“Flexible working can be particularly valuable for those who need to balance their personal lives with their working lives, including those with caring responsibilities. It can also bring benefits to employers – attracting more applicants and increasing productivity and motivation levels among staff.”

The response to the consultation was published 5 December 2022 and confirms the Government’s intention to introduce changes to the right to request flexible working legislation.

The current position

Under current legislation, employees with 26 weeks of continuous service are able to make a statutory request for flexible working once, within a 12-month period. 

Where a statutory request is made, employers must deal with that request in a reasonable manner. They must notify the employee of the outcome, including any appeal, within a three-month period, unless that timeframe is extended by mutual agreement. If the employer wishes to reject a statutory request, they can only do so on one of the statutory grounds:

• the burden of additional costs;
• inability to reorganise work amongst existing staff;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• detrimental effect on the ability to meet customer demand;
• insufficient work for the periods the employee proposes to work; and
• a planned structural change to the business.

What is going to change?

The right to flexible working is to become a day one right. However, the Government is emphasising in its response the distinction that this remains a right to request, not a right to have flexible working.

In addition, employees will be allowed to make two requests within a 12-month period, and the response time for employers will reduce to two months.

There will also be a new duty to discuss alternatives to the request and to consider if there are alternative forms of flexible working available. It is not yet certain whether this will be a statutory requirement or simply guidance.

The procedure for requesting flexible working will also be simplified by removing the requirement for employees to set out how the effects of their flexible working request might impact upon the employer. The consultation response is silent on removing other aspects surrounding requests, for example expressly stating that it is a request made under the flexible working legislation.

For the avoidance of doubt, there will be no change to the eight reasons listed above that the employer has to refuse a request for flexible working.

The consultation paper notes that primary legislation is required, but does not include any draft legislation or set out a timetable.  However, the government has also said it will support an existing Private Members' Bill (newbook.book (parliament.uk)). 

So it is possible that the change allowing employees to make two requests within 12 months, and for the decision time to be reduced to 2 months, could come in sooner than anticipated. 

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