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Government Consultation on Flexible Working Launched

The government has commenced their much anticipated consultation on making flexible working the default. Whilst the proposals in the consultation do not go as far as turning the ‘right to request’ into a ‘right to have’, the consultation does contain a number of significant proposed changes.

So, what do employers need to know?

1. Why are changes being proposed?

A “world class approach” to flexible working is a key part of the government’s “ambition to build back better, ensuring that our flexible labour market is primed for the opportunities and challenges of the post Covid-19 economy”. The government believes that flexible working can bring benefits to both employees and employers.

2. What are the proposals?

The consultation sets out four key proposals, these are:

Making the right to request flexible working a day one right

Currently, to make a statutory flexible working request, employees must have 26 weeks’ service at the date the request is made. The objective of proposing to remove the length of service requirement is to open up the opportunity to make a flexible working request to more people.

In addition, the government believes “it will also help to encourage, or nudge, certain behaviour changes from employers so that they consider flexible working options early in the job design/recruitment process and give employees more confidence to make a request”.

Considering whether the eight business reasons for refusing a flexible working request all remain valid

The current flexible working rules provide that if a flexible working request is to be refused, this must be done on one or more of the specific grounds set down in legislation, such as an inability to recruit additional staff or that the requested change would have a detrimental impact on quality or performance. Whilst, on balance, the government are “broadly content” with the current list of reasons for refusal, they are seeking views on them as they are “aware that employers’ experience of flexible working has changed dramatically since the right to request flexible working was first brought in, particularly over the course of the pandemic”.

Requiring the employer to suggest alternatives, where possible

The government is seeking views on whether employers should be required to show that they have considered alternative working arrangements when rejecting a statutory request for flexible working. This would be to “encourage a culture where employers give full consideration to requests for flexible working and what might be possible – rather than simply rejecting the immediate proposal which has been put forward”.

Making changes to how often an employee can make a flexible working request and how long an employer has to deal with it

The government is exploring allowing employees to make more than one statutory flexible working request in a 12 month period to make the legislative framework more responsive to changes in an individual’s circumstances. They are also consulting on whether the current three month timescale employers have for fully dealing with flexible working requests remains appropriate.

The consultation also picks up on some matters that have been previously considered in relation to flexible working and the government has stated that:

  • They do not feel that now is the right time to introduce a statutory requirement for employers to say in job adverts whether flexible working is available.
  • An earlier proposal to legally require large employers with 250 or more employees to publish a flexible working statement or policy will not be taken forward.

3. What happens next?

The consultation remains open until 1st December 2021. We will keep you updated on any developments once the government publishes their response.

4. Where can we find information about the current position regarding flexible working?

If you would like some initial information regarding the current flexible working rules, please see an earlier Legal Update here, and if you would like further details or require advice on a situation in your organisation, please do not hesitate to contact Kingfisher Professional Services Ltd.

If you would like help with any employment law matter, please contact Kingfisher Professional Services Ltd.


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