Flexible working: a new regime

A key tenet of the Conservative party’s 2019 manifesto was the proposal to make flexible working the default in order to support working families. Fast forward three years and a pandemic later and the government has outlined its plans for a new flexible working regime. Crucially, there will be no requirement for flexible working to be available by default for all roles.

Government responds to flexible working consultation

In Autumn 2021, the government ran a consultation on changes to flexible working legislation. It has now published its response to that consultation, indicating that it will make a number of key changes to the flexible working regime.

  • A right to request flexible working from day one - The right to make a statutory request to work flexibly will become a day one right and the existing requirement of 26-weeks’ service will be removed. This proposal was overwhelmingly supported by respondents to the consultation with 91% in favour of the change. The CBI commented:

“This will support a shift in workplace culture, moving away from the notion that the ability to request flexible working is an earned benefit …”

  • Employees may make two flexible working requests in a 12-month period – Rather than being limited to one request each year, employees will be able to make two flexible working requests. As the Business Disability Forum commented: “multiple life events can happen over a 12-month period”. Although this has the potential to increase the burden on HR, the government believes the change will support its overall policy objective of normalising flexible working.
  • Employers must consult with employees to explore available options before rejecting a flexible working request – As a way of encouraging wider consideration of flexible working requests, employers will be required to discuss the proposed working arrangement, and to consider alternatives with the employee, if the proposal is found to be unworkable.
  • Employers must respond to requests within two months – The statutory timeframe available to employers to respond to a request will be reduced from three months to two months. The majority of respondents were in favour of the reduction, with the CBI commenting on the importance of a speedy response to make life-planning easier for employees.
  • No requirement for employees to set out the effects of their flexible working request – The requirement for employees to set out how the effects of their flexible working request might be dealt with by their employer will be removed from the legislation. It was acknowledged this requirement would not work well with the switch to flexible working as a day one right. In addition, some respondents suggested that the present requirement unfairly disadvantaged those who may struggle to present their applications in business case terminology.
Reasons for rejecting requests

No changes will be made to the statutory list of reasons for rejecting flexible working requests. Consultation responses highlighted that a key concern was how the reasons were used rather than what they specifically stated. The emphasis should be on the quality of the conversation between employers and employees, rather than the reason given for the rejection of the request.

A fundamental change in approach?

It is clear from the response to the consultation that the concept of flexible working as a default has been abandoned. In its consultation response, the government states in terms that:

“There is no ‘one size fits all’ approach to work arrangements … the legislation remains a right to request, not a right to have.”

Although the pandemic has vastly changed attitudes to flexible working, employees will still be dependent on the approach taken by individual employers as to whether those requests are granted, rather than having a statutory premise in their favour.

What next? 

The majority of the proposals outlined in the consultation response form part of the Employment Relations (Flexible Working) Bill, a Private Members’ Bill, currently making its way through parliament. In October 2022, the government indicated that it was backing the Bill and the consultation response formalises this position.

However, whether or not the Bill comes into force will depend on how quickly it progresses. Private Members’ Bills which do not complete all their stages during the parliamentary term are not carried over to the next term. If the Bill fails to complete, the Bill will fall and implementation of these changes will be delayed.