D-BRIEF – Employment & Pensions Blog: Consultation on changes to flexible working requests

Last week, the Government published a consultation document, “Making flexible working the new default which includes its proposal to allow all employees to request flexible working arrangements from day one of their employment, replacing the current 26 week wait period.

Current law

At the moment, only employees with a minimum of 26 weeks’ continuous employment are entitled to make a request for flexible working under the statutory scheme. Employees can only make one request per year, which the employer must consider and provide a decision on within 3 months from the date that the request is made. Currently, there are 8 reasons why an employer can refuse a flexible working request, and include things such as the burden of additional costs and negative impact on business.

The Government’s proposal

The proposals are part of the Government’s ‘building back better’ approach, and it considers post pandemic, there is an opportunity for employers and employees to move away from the default 9-5. The consultation covers the following five proposals to reshape the existing framework surrounding flexible working:

  • Making it a right to request flexible working from day one;
  • Revisiting the 8 prescribed reasons for refusal;
  • Requiring employers to suggest alternatives, where possible;
  • Rethinking the administrative process that underpins the right to make a flexible working request, including whether employees should be allowed to make more than a single request per year, and
  • Requesting a temporary arrangement.

What does this mean for employers?

It is important to note that the new proposals are not synonymous with creating a right to work flexibly from day one, it is simply a proposal to extend the right to request flexible working, to a wider group of employees. There is no intention to prevent employers from rejecting requests for business reasons where they cannot be accommodated.

Of particular note in this paper, is the proposal to require employers to suggest alternative flexible working arrangements where possible. The importance of this was highlighted in last week’s blog in the case of Thompson v Scancrown Ltd t/a Manors. Ms Thompson was successful in her claim against Manors for indirect sex discrimination, when they rejected her request to finish work an hour early so that she could collect her daughter from nursery, offering no alternative suggestion or compromise. You can read our summary of the case here. The underlying purpose of this proposal is to encourage the process to become a negotiation, with both sides working together to reach a compromise that meets the needs of both parties. Whilst many employers will already take this approach, and indeed it is important to do so to defend any indirect discrimination claims, introducing this proposal would mean that all employers must at least consider a compromise.

The proposals also cover allowing employees to make more than one flexible working request a year. Whilst the Government recognises the administration burden of enabling multiple requests from employees, the intention is to create a more flexible framework, permitting further requests to where personal circumstances change. If the pandemic has taught us anything, it is that circumstances can change drastically in a matter of weeks so additional flexibility could be helpful, albeit it will need to be balanced with the burden it places on businesses, particularly if employers are also receiving requests from a wider group of employees than previously.

The consultation is open until 1 December 2021 and details about how to submit a response are included in the paper.

For further information on flexible working requests and or indirect discrimination claims please contact a member of the Employment Team.

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