WorkLife 2.0: Making flexible working the default - UK Government publishes consultation on flexible working

The UK Government has recently published a consultation on proposals to reform the existing framework on flexible working.

As the law currently stands, employees with at least 26 weeks’ continuous employment can make a formal request for flexible working for any reason. Making such a request triggers a three-month decision period within which the employer must consider the request and notify the employee of the outcome. Employers are required to deal with flexible working requests in a reasonable manner, and may only refuse for one or more of the eight reasons set out in the legislation. Under the current statutory regime, employees are only allowed to make one flexible working request in each 12-month period.

The Government’s consultation makes clear that its objective is to make flexible working the default. In doing so, it sets out the following key proposals for consultation:

• making the right to request flexible working a “day one right”, allowing an employee to make a statutory request for flexible working from the very first day of their employment, bringing more employees within the scope of the legislation and prompting employers to consider flexible working options much earlier on in the job design and recruitment process;
• whether the eight business reasons for refusing a request all remain valid, particularly in light of the Covid-19 pandemic which has dramatically changed the world of work for both employers and employees;
• requiring the employer to suggest alternatives where it feels that an employee’s request cannot be accommodated, such as making a change temporarily rather than permanently, making a change on some working days rather than all working days, and considering alternative part-time working patterns;
• allowing employees to make more than one statutory request per year to ensure that the legislation is not placing unnecessary barriers to accessing flexible working among those whose personal situation may have changed within 12 months;
• potentially amending the three-month deadline for responding to requests to ensure that requests are dealt with more promptly; and
• encouraging employees to make time-limited requests to work flexibly, to cover situations where, for example, a parent is supporting their child’s transition from early years care into school.

Crucially, the consultation does not propose a right to work flexibly. It simply proposes amendments to the circumstances in which, and the process by which, employees are able to make a request to work flexibly. Employers will still be entitled to refuse flexible working requests where there are sound business reasons to do so. In addition, employees will still be able to make informal requests for flexible working outside of the statutory regime in accordance with any processes the employer has put in place.

For employers, the most significant risk in flexible working is a possible discrimination claim if an employee considers that the refusal of their flexible working request is, or could be, discriminatory. A recent decision in the Employment Tribunal highlights this very point. In Mrs A Thompson v Scancrown Ltd T/a Manors, an employer’s refusal to modify a female employee’s working hours to accommodate her childcare responsibilities was held to be indirectly discriminatory on the grounds of her sex. The Employment Tribunal described the claimant as having faced “an injustice because of her sex”, acknowledging the fact that women tend to bear the primary burden of childcare responsibilities. The claimant in that case was awarded £185,000 in compensation for lost earnings, lost pension contributions and injury to feelings.

The ability to bring a discrimination claim is already a “day one right” in the UK, so the consultation may not result in a dramatic shift in risk for employers. The biggest impact may be a practical and cultural one – the Covid-19 pandemic has dramatically changed work life as we know it, and the consultation is a clear sign that flexible working is here to stay. At the height of the first lockdown in 2020, 47 per cent of the UK workforce was working from home, compared with 11 per cent in 2018. But working from home isn’t the only possible outcome of a flexible working request. The pandemic has also led to a greater recognition of the need for flexibility to balance professional and personal commitments, so we may also see an increase in requests to move to job-sharing and flexi-time arrangements, compressed, annualised and staggered hours, and phased retirement too.

As a result of the consultation and recent case law, we expect employers to feel under increasing pressure to accommodate flexible working requests or to justify very clearly their refusal. A clear and up-to-date flexible working policy is advisable, and Acas has a helpful Code of Practice which can be used as a starting point. As part of this, employers may want to consider in advance whether jobs can be done flexibly, as queries may arise during the recruitment process or requests may come in very quickly after an individual has started work. Giving proper consideration to a request, and documenting clearly any legitimate and objective grounds for not being able to accommodate a request, will help to manage risk for employers.

The consultation closes on 1 December 2021.

For more information about the legal framework in relation to flexible working across Europe, please see our recent blog post here.