The Government Response to the Consultation on making Flexible Working the Default
The Government published a consultation paper on 23 September 2021, which ran for 12 weeks before closing on 1 December 2021.
The consultation set out proposals to amend the right to request flexible working so that it might better support employers and employees to reach agreement about appropriate flexible working arrangements.
The Governments response suggested four main changes.
1. The right to requesting flexible working becoming a day one right. It is currently only available for employees who have 26 weeks’ service. Now it will be a right for employees to be able to make a flexible working request from their first day of employment. This change was widely supported by respondents with 91% being in favour. This will remove the perception that flexible working is something that must be “earned” rather than it being the norm.
2. The current maximum limit on making a flexible working request is one per 12 months and the employer response time is 3 months. The government seeks to change that in their response stating, “Employees should be able to make more than one request within a 12-month period, and that employers should respond to requests more swiftly.” This is now going to change to allow two requests per 12 months and the response time employers must give will shorten. Now an employer must reply within 2 months, this change was highly supported with 74% of respondents supporting this.
3. There is a new duty on employers to discuss alternatives during a consultation with the employee. Not far off a full house with 94% of respondents supporting the principal. “This will reinforce the aim in the consultation that there should be negotiation between employer and employee, which takes account of both employee preferences and business needs.” – Employment Lawyers Association. There were however concerns that it could turn into a tick box exercise.
4. The process by which employees use to request flexible working has been simplified. The requirement, to set out how the employees flexible working request might impact the employer, will be removed. Organisations such as the Trade Union Congress and the Equalities and Human Right Commission felt that the requirement could lead to unfair treatment and, in some cases, indirect discrimination. Another criticism of the requirement was that new employees could not be certain on the impact of their request upon joining an organisation. For these reasons, rather than placing the sole responsibility on the employee to set out the business case, employers should seek to engage with employees to jointly understand the impacts.
We are not certain when these legislative changes will come into place, but with the governments open support of the existing Private Members’ Bill, means the specifically the amount of flexible working requests allowed per year, will happen sooner rather than later.
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