What are the implications of the latest flexible working proposals?

Kate Brown explains the plethora of issues up for review in the government’s consultation on flexible working rights

Nearly 20 years have passed since the right to request flexible working was introduced in the UK. Initially, it was only available to parents and some other types of carers. Over the years that position has changed dramatically, and the necessity of remote working during the pandemic has seen an increase in demand for more flexibility. 

On 23 September, the Department for Business, Energy and Industrial Strategy (BEIS) published a consultation document named, Making flexible working the default, that proposes various reforms to the right for employees to request flexible working. 

Although the consultation document does not propose an automatic right for flexible working, it suggests a significant broadening of the current rules. The paper covers a plethora of issues pertaining to flexible working, but its main proposals are: 

  • Allow requests to work flexibly from the point of inception in an employment relationship;

  • A duty on employers who refuse a flexible working request to suggest alternatives;

  • Potential reform of the ‘fair’ reasons for refusing statutory request for flexible working;

  • Review and assessment of the administrative process underpinning the right to request flexible working (ie, how many requests an employee may make each year, and how much time the employer has to deal with the request); and

  • Consideration of how an employee could better use the option to request a temporary flexible arrangement. 

Arguably the most significant of these is whether flexible working should be a right that applies from the first day of employment. There is currently a 26-week qualifying period required to request flexible working, which acts as a barrier to many seeking to invoke the right. The government estimates that around 2.2 million people are unable to make a statutory flexible working request because they do not have enough continuous service. 

The proposal that statutory flexible working provisions cover a much wider group of employees is likely to increase the number of requests an employer might receive, as well as the associated administrative and managerial work involved in dealing with them. 

The proposals, if implemented, may force employers to think more creatively about how an employee can do their job and whether their current policies regarding how often staff are required to be in the office are still feasible. They may also need to consider requests such as condensed hours and whether the objectives of an employee’s role can still be achieved over a shorter working week.  

BEIS has emphasised the need to get the culture right within organisations when seeking to create a more inclusive and flexible environment. Achieving this culture will require a mindset shift along with the practical considerations of amending policies. It is important to note that the proposals are not an absolute right, they are a right to request. If it’s deemed reasonable to do so, an employer would still be able to refuse – though the criterion for a reasonable refusal is also up for review under the proposal. 

For employers, the consultation may not amount to a large overhaul of working patterns. However, even if the changes do not present an immediate concern, senior management and HR professionals should bear in mind that unreasonably refusing a flexible working request can result in an indirect sex discrimination claim. Employers should, therefore, carefully consider if it can reasonably be granted.

While it is not the intention of the consultation to come up with a prescription of specific procedures, employers would be wise to review their existing policies and practices in relation to flexible working to ensure that they are able to manage such requests fairly and efficiently.

Kate Brown is a solicitor in the employment law department at a specialist law firm Thomas Mansfield Solicitors