Modernising flexible working - day one “right to request” but no “right to have”

What is the current right to request flexible working?

Since 2014, employees with at least 26 weeks’ continuous service have been able to make a written request for flexible working. The request can be to change location, hours and times of work, and can be made for any reason. Employers are not required to agree to the request, but can only refuse it for one of eight specified business reasons. Our previous article on the government consultation sets out the current regime in more detail.

What will change and what will remain the same?

The government’s consultation on flexible working closed on 1 December 2022 and received over 1,600 responses from a wide range of stakeholders, including both organisations and individuals. Respondents to the consultation commented that flexible working is important for many organisations, improves access to employment for protected groups, and often benefits both the employer and employee.

The consultation has been running alongside a Private Member’s Bill (the Employment Relations (Flexible Working) Bill (the Bill)), which passed its Second Reading on 28 October 2022 and is being supported by the government. Our recent article on this and other Private Member’s Bills is here.

The government’s response and conclusions sets out a number of changes to the current rules. These changes are the same as the government proposed in the original consultation paper. As noted in our previous article, these are relatively modest rather than radical reforms. Most of the government’s conclusions also reflect the changes already set out in the Bill, which the government has confirmed it will continue to support.

The headline change is making the right to request flexible working a day one right. The Bill does not cover this issue. The consultation response estimates that this would make the right available to an additional 2.2 million people and would make it the “norm” rather than a right to be earned. This proposal was well received by both individuals and organisations, with 91% of respondents in favour, and it was noted that many employers are already agreeing to consider flexible working requests from day one anyway. Some respondents raised concerns about the level of disruption that this could cause to the workplace, and some commented that there could be a negative impact on the working relationship where an employee seeks to alter their working arrangements so soon after agreeing their contract.

Overall, the government concluded that this would be a proportionate step to take. In doing so, it emphasises that this remains a right to request, not a right to have.

The changes which overlap with the Bill are:

• Requiring employers to consult with their employees, as a means of exploring the available options, before rejecting their flexible request. Consideration was given to whether employers should show (through a written notice to the employee) that they have considered alternative arrangements when rejecting a flexible working request. Concerns were raised regarding the administrative burden that this could place on employers. The government has concluded (in line with the Bill) that employers should be required to consult with their employee before rejecting their flexible working request, but this now stops short of requiring any consideration of alternatives to be set out in writing.

• Allowing employees to make two flexible working requests in any 12-month period and requiring employers to respond to requests within two months. The government notes concerns raised by employers over whether a shorter timeframe is insufficient for proper consideration of any business implications, but they decided on the evidence in the responses that the change should go ahead. The main reason in favour given by respondents was that circumstances can change within 12 months and will often necessitate a quicker response to avoid negative outcomes for both employees and employers. Again, this reflects two of the key changes in the Bill.

• Removing the requirement for employees to set out how the effects of their flexible working request might be dealt with by the employer. Some respondent organisations noted that the existing requirement could lead to unfair treatment and possibly indirect discrimination. The government agrees, and also notes that this could be difficult for new employees if it is a day one right. The government therefore intends to remove this requirement – again, as already set out in the Bill

Notably, the government has decided that no changes should be made to the eight business reasons for refusing a request. Consideration was given to recent changes to business and individual working practices, such as the rise in (and public acceptance of) homeworking and greater flexibility following the Covid-19 pandemic. However, responses varied between those suggesting that the list is too broad and should be narrowed, and some employers suggesting that the list should be expanded due to concerns over employee supervision and collaboration within homeworking arrangements. The government’s conclusion was that no clear picture had arisen, and so the decision is to leave the current list of business reasons as it is.

The government notes that many respondents seemed unaware that a temporary flexible working arrangement could be agreed to under the current framework, and proposes to develop enhanced guidance to raise awareness and understanding of how to make and administer temporary requests. The government also says it will launch a call for evidence to better understand how informal or ad hoc flexible working works in practice.

How is this significant for employers and what happens next?

The headline change of making flexible working requests a “day one” right is the most significant, but seems unlikely to be particularly radical in practice. The consultation notes that many employers already agree to consider a flexible working request from day one, particularly where there is a change in an employee’s circumstances that will affect their working arrangements. Offering flexible working can often be used to attract new talent to a business, and it is something that employees are increasingly looking for in a post-pandemic world. In addition, the right will still only apply once someone has started work – although it is worth remembering that issues of indirect discrimination arising from refusal of flexible working requests (such as requests to accommodate disabilities or childcare) already apply from the point at which someone applies for employment.

The government’s other plans do not suggest that employers will need to make significant changes to their current practices. Businesses will need to be mindful of the tighter timeframe for considering requests and aware of the fact that employees may make more than one request in a 12-month period. This may involve training managers to ensure they are able to identify flexible working requests and supporting them with responding within the reduced timeframe. The requirement to consult the employee will also need to be factored into an employer’s processes for considering a flexible working request, but many employers are likely to do this already.

There continues to be a divide in opinion on the merits of homeworking and working remotely. One notable omission from the consultation was the environmental impact of a particular flexible working request which is considered in our recent article - perhaps this could have been one for a revised list of business reasons.

Many employees now expect considerable flexibility from their employers. It is important, however, that businesses continue to consider whether any legal or tax issues arise from working remotely (particularly when working abroad). Further information on remote and homeworking requests can be found in our recent publications on hybrid working and remote working overseas.

If new working arrangements are agreed, employers will need to remain vigilant to immigration issues that might arise. If the employee is a sponsored visa holder, most significant changes to their working arrangements must be reported to the Home Office using the Sponsor Management System. For example, any reduction in working hours which leads to a decrease in pay must be reported within 10 working days from the date the new salary takes effect. For Skilled Worker visa holders, employers must also ensure that the new salary continues to meet the relevant salary threshold for the role specified under the Standard Occupational Classification code for the employee’s role, as well as the general salary threshold.

No specific timescale has been given for the proposed reforms. It is likely that most of the changes will be linked to the progression of the Bill through parliament, which will reach the Committee stage on 7 December 2022. The right to request from day one is not currently in the Bill, and the response says it will be introduced “through secondary legislation when parliamentary time allows”. We have heard this phrase before with proposals that have yet to see the light of day! However, the link with other reforms in the Bill may mean that this change is given priority.