The UK Government announced its plans to make the right to request flexible working a day one right and has published its proposals to reform the existing flexible working legislation.
On 30 June 2014, the UK Government extended the Right to Request Flexible Working for parents and certain other carers to all employees with 26 weeks continuous service.
The Current Position for Flexible Working Requests
In the years since the right to request flexible working was extended, employers who receive a flexible working request under the statutory scheme have been. Obliged to:
- Deal with it in a reasonable manner.
- Notify the employee of its decision within the 3-month decision period.
- Only refuse a request on one or more of the following grounds:
- 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; or
- planned structural changes.
(Section 80G(1), ERA 1996.)
The Proposed Changes to Flexible Working
In its 2019 manifesto, the UK Government made a commitment to modernise the way we work and to give the right to request flexible working to all employees from day one.
In its recently published consultation paper “Making Flexible working the Default”, the UK Government sets out in detail its proposals which look at a range of flexible working methods such as job-sharing, flexitime, compressed, annualised and staggered hours, as well as phased retirement – not just working from home.
The proposed changes to the right to request flexible working and the process employers must follow, would also mean that all applicants will know they can ask for flexible working before applying for a job. Equally, employers will need to consider whether they can offer flexible working before advertising.
Notably, the proposals seek to retain an employer’s right to still be able to reject a request in certain circumstances.
Have Your Say
It seems clear that the UK Government want workers to have more say over where and when they work, which they say will make for more productive businesses and modernise the way we work.
Individuals and businesses are encouraged to share their views on the UK Government’s proposals to reform flexible working regulations and can read and respond to the consultation here: Making Flexible Working the Default
Risks and Considerations for Employers
The COVID-19 pandemic and the various restrictions imposed upon us forced most employers to adopt new flexible working arrangements in one way or another, albeit on a temporary basis.
However, as lockdown restrictions have been relaxed and employers have sought to end furlough and have staff return to workplaces, many have been met with resistance from staff.
As lockdown restrictions have been relaxed and employers have sought to end furlough and have staff return to workplaces, many have found that workers who have become accustomed to working from home over the last 18 months and having more time to spend with family and focus on their personal lives are reluctant to return to ‘normal’ and would much prefer to retain a more flexible arrangement.
One of the legacies of the COVID-19 pandemic, in this context, is that there has been a seismic shift in priorities with many people now desiring a better work life balance and flexible working arrangements that will enable them to achieve it. This will almost certainly put employers under increasing pressure to adopt a more accommodating approach to flexible working requests, which are almost certainly going to rise in the coming weeks and months, and especially if the Government’s reforms on flexible working are adopted.
In the meantime, Employers will still need to ensure that any requests for flexible working, either formally within the current statutory framework or informally outside it, are managed appropriately and in accordance with the current legislation and/or any policies that are in place and that the process they follow is well documented.
Any failure to manage flexible working requests fairly and reasonably could give rise to possible claims at the employment tribunal, the most significant risk likely being discrimination claims, particularly in circumstances where an employee’s request to modify their working hours to accommodate childcare responsibilities is refused.