New flexible working legislation to be introduced – What will this mean?

Following a consultation first launched in September 2021, the UK government has announced that it intends to reform the statutory flexible working regime.

The changes will extend the right for employees to request flexible working and will take effect through the Employment Relations (Flexible Working) Bill. While the government has not yet provided a specific date, it is anticipated that the changes will come into force later this year. In order to comply with the new requirements, employers in England, Wales and Scotland will therefore need to be prepared to review and amend their existing flexible working policies and procedures.   

Current position

Employees who have at least 26 weeks’ continuous employment (as at the date of the request) have the statutory right to request flexible working, as long as they have not made a statutory request in the previous 12 months. The employee must set out how the effects of their flexible working request might be dealt with by the employer.

An employer must handle a statutory right to request flexible working in a reasonable manner. This requires a reasonable process to be followed involving a meeting with the employee to discuss the request and genuinely considering the request fairly. The employer must usually deal with a request within three months of receipt.

The employer can only refuse a request for flexible working by reason of one or more of the eight statutory grounds as follows:

1. extra costs that will be a burden on or damage the business;
2. the work cannot be reorganised among other staff;
3. people cannot be recruited to do the work;
4. flexible working will negatively affect quality;
5. flexible working will negatively affect performance;
6. the business will not be able to meet customer demand;
7. there is a lack of work to do during the proposed working times;
8. the business is planning changes to the workforce.

If a request for flexible working is accepted, the employer should confirm the agreed working arrangements in writing and formalise the changes by incorporating the new terms into the employee’s employment contract.

Proposed changes

The reforms have been publicised by the government as making the right to request flexible working fairer and more inclusive for employees. The proposed changes are as follows:

• The right to request flexible working will become a day one right for all employees

The government’s response to consultation noted that the 26-week qualifying period had led to a negative perception that flexible working must be earned rather than being the norm. However, the consultation recognised that there is no “one size fits all” approach to working arrangements and therefore the legislation should remain as a right to make a request, not a right to work flexibly from day one.

• Employers will be required to consult with employees before rejecting requests for flexible working

Consultation will act as a means for exploring any alternative options to flexible working available and encourage wider consideration by employers of what is feasible for its employees. It will also bring legislation in line with the current ACAS Code of Practice.

• Employers will have to respond to flexible working requests within two months

The timescales for considering a request will be shortened from three months meaning that employers will need to improve efficiency in their processes whilst ensuring that the new requirements for consultation are adhered to.

• Employees will be permitted to make two flexible working requests in any 12-month period

The government’s response to consultation recognised concerns regarding the prospect of repeat requests and the associated burden on an employer. It was decided that increasing the number of permitted requests in a year from one to two was reasonable.

• The requirement for employees to set out the potential effects of their flexible working request on their employer will be removed

It was suggested, during the government’s consultation, that this requirement could lead to unfair and potentially discriminatory treatment of employees. Given the new proposed right to request flexible working from day one, it would also be impossible for new employees to establish the effects on the business’ working practices at the start of their employment. The change will therefore remove the unnecessary burden on employees and instead the onus will be on employers to determine the potential effects on their business.

It should be noted that the right to request flexible working only applies to employees and the eight statutory grounds for refusal by an employer will remain unchanged by the proposed new legislation.

Action points for employers

The government has confirmed that it will be developing enhanced guidance for employers and employees in relation to making and administering temporary requests for flexible working and so this should provide further direction for businesses once available.

Employers are not required to take any immediate action at this stage as it remains to be seen how quickly the reforms will progress. Most of the changes will require new legislation to be enacted (for example, secondary legislation will be required to introduce the day one right) and more evidence may need to be gathered before the changes are fully implemented.

However, employers should be aware of the planned changes and how they will impact their business going forward. Once implemented, the new requirements will need to be reflected in flexible working policies or procedures and it will be necessary to ensure that those dealing with requests in management positions are fully trained regarding the new processes and timescales.

Employers contemplating refusal of a request should take into consideration the possibility of facing employment tribunal claims, which could potentially include discrimination claims, and should seek specific advice where necessary. Additionally, during the recruitment process employers may have to field more frequent questions about flexible working patterns from candidates at interviews. It would therefore be sensible to reflect on any role-specific flexible working arrangements.

To discuss any issues arising from the expected changes to the flexible working legislation, please contact Jatin Patel or the gunnercooke Employment team.