Government launches consultation: “Making flexible working the default”

What is the current law on flexible working?

As a reminder, the current legal position allows for employees with at least 26 weeks’ continuous employment to make an application to work flexibly. Such employees are only permitted to make one request in any 12-month period. Eligible employees can request a change to:

• the hours they work;
• the times when they are required to work; and/or
• the place of work (as between their home and any of the employer's workplaces).

The employer has a three month decision period (which can be extended by agreement) to notify the employee of the outcome of their request. The employer must deal with the application in a reasonable manner and can only refuse a request for one or more of the following eight reasons:

• 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; and/ or
• planned structural changes.

What are the proposed changes?

The consultation sets out five proposals for reshaping the existing regulatory framework to better support the objective of making flexible working the default. It considers:

• making the right to request flexible working a “day one” right;
• whether the eight business reasons for refusing a request all remain valid;
• requiring the employer to suggest alternatives if they plan to refuse a request;
• the administrative process underpinning the right to request flexible working; and
• the right to request a temporary flexible arrangement.

The consultation includes background and context on each of these areas and number of questions on which it is inviting responses.

What else does the consultation cover?

The consultation document sets out a number of other steps to help make flexible working the default.

• The government will invite the “Flexible Working Taskforce” (a partnership across business groups, trade unions, charities and government departments) to consider how to move on from the immediate response to Covid-19. In particular, how to make the most of the lessons learnt (good and bad) over the last 18 months as more people start to return to the workplace and as employers respond with new approaches to working.
• The government will consider how to secure a “genuinely flexible working friendly culture across and within organisations”. As part of a separate exercise, it will launch a call for evidence looking at “the sorts of ‘extra’ flexibility people may need to help them live their lives in the best way they can – both at work and at home”. The call for evidence will explore the need for ‘ad hoc’ and informal flexibility and how this can best be supported.
• The consultation document also analyses the responses received to the July 2019 consultation on the Good Work Plan.

What does this mean for employers?

• In short, nothing is changing for now - this is only a consultation on proposed reforms. However, it does signal that changes are on the way (such as removal of the 26 weeks’ service requirement) and employers may want to keep these in mind when thinking about their future hybrid working or other working arrangements.
• It’s important to note that despite the title of the consultation “making flexible working the default” – the proposals are about making the right to request flexible working a day one right. It is the right to request which is the default, not the actual flexible working arrangements.
• Interested parties should submit responses to the consultation before 1 December 2021. Responses can be made online here or by email. A response form is available on the GOV.UK consultation page.