On 5 December 2022, the government published its response to its 2021 consultation on flexible working, which included proposals for making flexible the default option for employees. The response contains proposals that make flexible working a day one right and give employees more influence over when, where, and how they work.
Once the changes are implemented employees will no longer need 26 weeks of continuous employment to qualify for the right to request flexible working. The right however will remain a right to request, not a right to have, flexible working and employers will still have the right to reject a request on one of a defined number of grounds.
One change to the existing regime will be a requirement on employers who are intending to reject a flexible working request to consult with the employee in question to consider other options, demonstrating a constructive attempt to deal with the request as fairly as possible. This means that if the employer intends to reject the request, it must discuss whether there are alternative forms of flexible working available (although it is not clear whether this will be a strict statutory requirement). The ACAS Code of Practice on handling flexible working requests will remain relevant guidance.
Another change is the ability of employees to make two flexible working requests in a 12-month period instead of just one. Employers will have two months rather than three to respond to a request.
The existing requirement on employees to set out how the effects of their flexible working request might be dealt with by the employer will be removed.
What will stay the same?
Currently, there are eight business reasons on which employers can rely to refuse a flexible working request. This list will remain unchanged.
When will the changes happen?
The Employment Relations (Flexible Working) Bill, which will implement the change allowing employees to make two flexible working requests in 12 months and reducing employers’ response time to two months, is currently going through Parliament. As the government has expressed support for this Bill, it is likely become applicable law in the near future.
The government has not set a timetable for the day one right (which will require primary legislation) or the measure on discussing alternatives. We will keep you updated, as and when dates are announced.
For further information, please contact:
Meriel Schindler, Partner, Withersworldwide