The reforms were originally much publicised as aiming to make flexible working the default for all but, in practice, the changes fall short of this. In fact, the government’s response confirms that the legislation will still provide for “a right to request, not a right to have”, albeit that the right to request will now apply from day 1 of employment.
Here we round up a summary of the rights employees currently have to request flexible working arrangements, alongside the proposed changes:
|CURRENT POSITION||FUTURE POSITION|
|Right to request (not a right to have) flexible working in relation to the hours, times or place of work||Unchanged|
|The right to request only applies to employees||Unchanged|
|26 weeks’ service required||Day 1 employment right|
|8 statutory grounds for refusal apply*||Unchanged|
|No consultation required prior to rejection of request (only required to deal with request in a reasonable manner)||Employers will be required to consult with their employee, as a means of exploring the available options, before rejecting their flexible working request|
|One request in a 12-month period||Two requests in a 12-month period|
|Employer must respond to flexible working request within 3 months||Employer must respond to flexible working request within 2 months|
|Employee must set out how the effects of their flexible working request might be dealt with by the employer||No requirement for employees to set out how the effects of their flexible working request might be dealt with by the employer|
|Changes to working patterns are permanent, unless otherwise agreed||Government will issue a call for evidence on temporary arrangements and informal flexibility|
It remains to be seen now how quickly these reforms will progress. It appears that they are likely to ultimately take effect through the Private Members’ Employment Relations (Flexible Working) Bill, which the government has now confirmed it is formally supporting. The Bill passed its Second Reading on 28 October 2022. However, secondary legislation will also be required to introduce the day 1 right.
- ACAS guidance on flexible working
- ACAS Code of Practice on handling in a reasonable manner requests to work flexibly
*Extra costs that will be a burden on the business; the work cannot be reorganised among other staff; people cannot be recruited to do the work; flexible working will negatively affect quality; flexible working will negatively affect performance; the business’ ability to meet customer demand will be negatively affected; there is a lack of work to do during the proposed working times; the business is planning structural changes.
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