Flexible working to be made a day-one right under proposed legislation

Plans could see an additional two million people given access to flexibility, government says, but experts warn business culture still needs to change

Flexible working to be made a day-one right under proposed legislation

Employees will be given the right to request flexible working from the first day of their employment under plans that the government says will give 2.2 million more people access to different working arrangements.

However, experts have warned that the proposals fall short of giving workers the full right to flexible working, and without cultural change employers will continue to refuse requests. 

The proposals come as part of a long-awaited consultation, published today, outlining a range of legislative changes meant to encourage the uptake of flexible options.

As well as allowing employees to make flexible working requests on day one, the proposals suggest restricting the reasons employers can refuse a flexible working request, and introducing a requirement for employers to offer alternatives if the arrangement the employee asks for isn’t suitable.

Workers currently only have a right to request flexible working after 26 weeks of continuous employment.

However, the proposals were also clear that firms should still be able to reject a request if they have sound business reasons, and that specific flexible arrangements would not be prescribed through legislation.

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The government has said the plans would fulfill its 2019 election manifesto promise to make flexible working the default option for workers.

“It was once considered a ‘nice to have’, but by making requests a day-one right, we’re making flexible working part of the DNA of businesses across the country,” said business secretary Kwasi Kwarteng.

The launch of the consultation was also supported by Peter Cheese, chief executive of the CIPD, who said an enhanced right to flexible working from day one could help to improve both the provision and uptake of flexible working arrangements.

But, while Cheese said the pandemic had been a “catalyst” for showing how working practices can be more flexible, he stressed that flexible working meant more than just working from home.

“It also covers arrangements such as part-time, flexi-time, compressed hours or job shares, for example,” he said, adding that HR and people professionals would have a “vital role to play” in helping employers develop the right culture and policies to support a more flexible workforce.

Gemma Dale, lecturer at Liverpool John Moores University, also welcomed the consultation. But, she said, work also needed to be done to address negative attitudes to flexible working and flexible work stigma.

Unless policies around flexible working requests were also accompanied by an attitude change, “it may achieve nothing more than moving forward a potential 'no' decision,” she said.

Dale added that if day-one flexible working requests became a reality, employers would need to start providing guidance for hiring managers and carefully consider how they managed requests, and particularly how they managed trial periods of flexible working for individuals who are new to the organisation and still need to build relationships and learn about the organisation itself.

Susan Kelly, partner in the employment practice at Winckworth Sherwood, added that it was unlikely all businesses would be happy with having to deal with flexible working requests from new staff on day one.

Under the proposals, it would still be possible for employers to turn down requests on specific grounds, meaning the changes would “not have an impact in sectors where physical presence is essential, such as healthcare or catering,” Kelly said.

But, she added: “Handling such requests takes management time and effort, just as mishandling them can give rise to claims.”

Keely Rushmore, partner at Keystone Law, also warned of the risk of indirect discrimination claims if employers didn’t follow reasonable procedures when turning down a flexible working request.

There have already been examples of employees successfully taking their employers to tribunal over a rejected flexible working request, said Rushmore, including Thompson v Scancrown Ltd t/a Manors, in which a female estate agent resigned after her request to move to a four-day week and to finish earlier was rejected.

The claimant was found to have been indirectly discriminated against on the ground of sex and was awarded around £185,000.

Rushmore advised employers to approach flexible working requests in a positive manner and with an open mind, to avoid making decisions on the basis of assumptions, and to attempt to find compromise even if there are sound business reasons for rejecting the employee’s request.  

“Entering into a dialogue will not only help avoid employment tribunal claims but can assist in building a loyal and engaged workforce,” she said.

The government’s consultation is open for submissions until 1 December.