Is the law on flexible working changing?

On 23 September 2021, the UK Government published a consultation paper which sets out a number of proposals in relation to the law on flexible working.

Current rules on flexible working

Under current law, an individual has the right to make a flexible working request if:-

• They have worked for their employer for at least 26 weeks;

• They are legally classed as an employee; and

• They have not made any other flexible working request in the previous 12 months.

Employees may request a change in relation to the hours they work, the times they are required to work and/or their work location.

Where a valid request is submitted, employers are required to consider requests reasonably, in line with the Acas Code of Practice, and must make a decision within a maximum timeframe of 3 months (unless a longer period is agreed by both parties).

If an employer rejects a request, they must rely on one (or more) of eight statutory business grounds to do so.

The proposals

The Government consultation sets out and seeks views on five proposals with a view to reforming the current statutory framework. The following are considered:-

• Making the Right to Request flexible working a day one right;

• Whether the eight business reasons for refusing a request all remain valid;

• Requiring an employer to suggest alternatives where it is not possible to accommodate a request;

• Changing the administrative process underpinning the right to request flexible working;

• Increasing awareness of the existing right to request a temporary arrangement.

What might this mean going forward?

At this stage, this is just a consultation on possible reform to the current law on flexible working and therefore no changes have yet been confirmed.

Nevertheless, the proposals do indicate that there is an appetite for change and signals a move towards flexible working becoming the default position, with a key focus of the consultation being on encouraging a meaningful dialogue between employers and employees with regard to flexible arrangements.

Arguably the most significant proposal is the possible removal of the 26 weeks’ qualifying service requirement, which if implemented, would mean that all employees will be entitled to request flexible working from the outset of their employment as a ‘day one right’. Despite this, it is important to note that it would remain that the right is to request a flexible working arrangement, and not an automatic entitlement to flexible working.

Whilst the consultation invites comment on whether the eight business reasons for rejecting a request remain valid, it is likely that following any reform it will remain open for employers to rely on business grounds where a flexible arrangement cannot be accommodated, although it is possible that employers could be required to show they have considered alternative options if rejecting a request.

The consultation is due to end on 1 December 2021, so it is possible that any changes that flow from this will be announced in the coming months.

In the meantime, it is important that employers continue to deal with flexible working requests carefully and promptly, as flexible working appears to be more relevant than ever as a result of changing attitudes and working practices during the pandemic.

If you require any advice on flexible working, or on how to deal with a request, please contact a member of our employment team who will be happy to assist.