For those of you who remember (or even put store by such things, during the last general election, the government included a manifesto pledge to make flexible working the default position unless employers have a ‘good reason’ not to.
You may also remember the launch of the Flexible Working Taskforce in 2019, which was a partnership across government departments, business groups, trade unions and charities to encourage employers to consider advertising jobs at all levels and pay grades as flexible.
Then it all went quiet……
Recent times however and the various national lockdowns have brought the issue of flexible working into the spotlight – it clearly is an issue that we see both employers and employees grappling with as we move towards a “new normal”.
So, what do the proposals mean in practice and how does this differ from the current position? We think that the government believes that making flexible working available at the outset of the employment relationship will help encourage employers to consider flexible working options early in job design/recruitment process and give employees more confidence to make a request.
The first key point though is that as things stand, the government will not be changing the law to allow employees a ‘right to have’ flexible working and employers will still be able to turn down requests they can’t accommodate. Employees will still have to initiate the discussion (as they do now) and the focus of the consultation is to support employees to start these conversations and help employers to respond to them.
In other words, the government has no intention of making flexible working the default position.
The current position as you may know, is that employees with at least 26 weeks’ continuous employment can make a request for flexible working under the statutory scheme for a change to their contracted hours, working times and/or place of work for any reason.
Under the statutory regime, an employee can only make one request in any 12-month period and once made, an employer must:
- deal with the request in a reasonable manner;
- make a decision within three months beginning on the date on which the request is made (or such longer period as agreed between the parties); and
- can only refuse a request for one of the eight prescribed reasons, including the burden of additional costs, detrimental impact on the quality of services and inability to recruit additional staff.
The consultation paper sets out five proposals for reshaping the existing framework around flexible working, to make flexible working the default unless employers have a good reason not to.
It considers:
- Making it a right to request flexible working from day one, removing any requirement for continuous service as a pre-requisite – The government believes that making flexible working available at the outset of the employment relationship will help encourage employers to consider flexible working options early in job design/recruitment process and give employees more confidence to make a request. It is asking for views about whether the qualifying period can be removed and what benefits this might deliver. However, it does not intend to impose a legal duty on employers to say in job adverts whether they are open to flexible working;
- Whether the eight prescribed reasons for refusal of a flexible working request remain valid – The government doesn’t believe that these present a disproportionate barrier to flexible working (in our view they don’t) and doesn’t think that they need to be changed. However, it wants to find out if the existing business reasons are still appropriate;
- Requiring employers to suggest alternatives, where possible – The government wants to explore whether it’s practical to ask employers to set out, when rejecting a request, what alternatives it’s considered (and, if viable, presumably offered to the employee). It believes that asking employers to consider alternatives will help influence organisational norms;
- Looking at the process underpinning the right to make a flexible working request, including whether employees should be allowed to make more than one request per year and whether the three-month time limit for responding to such a request is the right balance – The government is considering removing this limitation so that people can make more than one request each year to reflect changes to their personal situations. It is also considering changing the three month time limit employers have to respond (which can be extended by agreement) to a shorter period. One of the options is for the process to be concluded in less than two weeks! Anybody who has been involved in this process will know that such a short timescale is completely unrealistic unless the parties are in agreement from the outset…….; and
- requesting a temporary arrangement – The government believes that the ability to request a temporary arrangement is under-utilised and it wants to know if businesses are aware that they can agree short-term arrangements.
We think that the new proposals are not intended to create a right to work from home for all employees, but rather the right to make a request for flexible working on day one. This could of course include a request to work from home either on a part-time or full-time basis, but it is not the case (as set out above), that such requests must be granted.
Conclusions
Please note that the public must submit their responses by 11.45 pm on Wednesday 1 December 2021 (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachm).
The proposals are a significant step and some might argue an additional burden to businesses and if implemented, would inevitably result in an increase in flexible working requests. It is therefore more important than ever to ensure that all employers have a clear flexible working policy in place that can be implemented and followed consistently where required.
At the moment, employers and employees are still adapting to new working arrangements. As we move towards another uncertain winter with Covid-19 and equipped with the knowledge that a return to working from home is high on the Government’s contingency plan for any unsustainable pressure on the NHS in the coming months, the advice would be not to rush to make a decision in support of the proposals.
We think that employers should continue to keep working patterns under review and obtain feedback from managers and employees as to how everything is working whilst matters continue to be subject to change. It may not be until Spring/Summer 2022 that the picture becomes far more settled, and it might therefore be advisable to wait until then before new contractual working arrangements are made.
If these considerations do not apply and the employer is able to fully assess the flexible working request now, it should be dealt with promptly and fully without unreasonable delay.
Please get in touch with us if you need any advice on the above
Regards to all
