D-BRIEF – Employment & Pensions Blog: Flexible Working

A Government Consultation response has confirmed its intention to make flexible working a day one right, allowing more employees the right to request flexible working in relation to when, where and how they work.

Following last year’s consultation on flexible working the Government has recently published its response confirming its intention to amend existing legislation to remove the 26-week qualifying period before an employee can request flexible working. This change is to reflect the no ‘one size fits all’ approach to working arrangements and intends to remove barriers that prevent people from changing jobs and in turn increase labour market participation and diversity.

Flexible working can give employees a better balance between work and their home life and can lead to happier, more productive staff. As well as having benefits for employees, studies have shown that flexible working can benefit employers and can create a diverse workforce and working environment leading to improved morale, productivity and business returns.

What does this mean for employers?

There will undoubtedly still be some reservation by employees in new employment relationships to make a request to change their work pattern from day one, before they have established themselves in a new role. Therefore only time will tell whether the removal of the qualifying period before a request can be made will actually increase the number of requests made by employees.

A key point for employers to take from the consultation response is that they continue to have a right to refuse a request for flexible working and whilst the consultation considered whether the reasons for refusal remained valid, the response confirms these will not change. An employee only has a right to request not a right to have a flexible working pattern. Legislation remains in place to recognise that employers may have legitimate business reasons to refuse a flexible working request. There are eight specific grounds for rejecting a request, which the Government has confirmed will remain in place and only these grounds may be relied on as reasons for rejection:

  • 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.

Although an employer still has the right to refuse a request based on the reasons above, the response confirms that it is intending to amend legislation to require employers to discuss any requests they are considering rejecting in line with the ACAS code of practice on flexible working.

The response also confirms the intention to increase the number of times an employee can make a request for flexible working in a 12-month period from once to twice; and reduce the employer’s response time to a request from 3-months down to 2-months.

At present there is no set timeline for when these changes will be implemented.

For more information, please contact a member of the Employment Team.

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