Government launches consultation on extension of right to request flexible working

The Government has today published its heavily-trailed consultation Making Flexible Working the Default on new proposals to make the right to request flexible working a day 1 entitlement, as well as its response to consultation on a new right to unpaid carer’s leave.

Currently the statutory right to request flexible working only applies to employees with 26 weeks or more service with their employer.  The statutory framework was introduced in 2003 and extended in 2014. The Government’s 2019 manifesto committed to encourage flexible working and consult on making it the default unless employers have good reasons not to. Arguably the proposals fall some way short of that position, but if the new proposals were implemented, it is estimated that around 2.2 million more people would be given the right to request flexible working.

Although the proposals come against the backdrop of a huge shift to home and hybrid working as a result of COVID-19, the consultation applies to a wide range of flexible working options such as job-sharing, flexitime, compressed, annualised and staggered hours, as well as phased retirement.

The consultation sets out 5 proposals for reshaping the existing statutory framework:

  • Making the right to request flexible working (“Request”) a day 1 right;
  • Considering whether the 8 business reasons for refusing a Request all remain valid;
  • Requiring the employer to suggest alternatives if a Request is rejected;
  • Changes to the administrative process underpinning the right to Request; and
  • Whether there should be more potential to request a temporary arrangement.

Day 1 right

This proposal would remove the 26 week qualifying period for making a statutory request. However, the Government is not proposing to require employers to state in job advertisements whether flexible working is available.

Business reasons for refusing a Request

An employer can currently reject a request for 8 specified business reasons, namely that:

  • It will incur 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; and
  • The business is planning structural changes.

Under the new proposals, employers will still be able to reject a request if they have sound business reasons but the consultation asks for views on whether the 8 specified business reasons remain valid.

Requiring employers to suggest alternatives

The consultation asks whether employers should be required to show that they have considered alternative working arrangements when rejecting a Request. Alternatives might include making a change temporary rather than permanent, or an alternative part-time working arrangement to the one requested.

The administrative process

Currently employees can make 1 Request every 12 months and an employer has 3 months to consider whether the Request can be accommodated. The consultation addresses multiple requests should be permitted and whether employers should be required to respond in a shorter timeframe.

Requesting a temporary arrangement

At present, if a Request is agreed, it will usually constitute a permanent change to the employee’s contract, although time-limited flexibility can be agreed. The consultation recognises that a permanent contractual change may not be appropriate in all circumstances and asks what would encourage employees to make time-limited Requests.

Separately, the Government will launch a call for evidence looking at the sorts of ad hoc or informal flexibility people may need; for example, to attend a one-off or regular appointment.

Publishing flexible working policies

The 2019 consultation “Good Work Plan: Proposals to support families” contained proposals to introduce a new requirement for large employers to publish their flexible working policies. The Government has decided not to implement a mandatory requirement but to support voluntary initiatives.

The consultation closes on 1 December 2021.

Carer’s leave

Government has also published a response to consultation on proposals to introduce a day 1 right to 1-week’s unpaid leave for carers balancing a job with caring responsibilities.

  • 1 working week of unpaid carer’s leave (per employee, per year) will be available as a day 1 right to those managing caring responsibilities for those with long-term care needs alongside work;
  • Eligibility in terms of who the employee is caring for will be broadly defined (following the definition of dependant used in the right to time off for dependants);
  • The long term care need person of the being cared for will be defined by reference to disability or issues related to old age, with limited exemptions;
  • Leave will be available to be used for providing or making arrangement for the provision of care;
  • The leave will be available to take flexibly (from half day blocks to a whole week);
  • The administrative process to ensure legitimacy of requests to take Carer’s Leave will be light touch;
  • The leave will be subject to a minimum notice period of twice the length of time being taken, plus 1 day (in line with annual leave notice periods)

The leave entitlement will be introduced “when parliamentary time allows”.