Sweeping changes proposed for flexible working rights

13 December 2021

The Government has launched a consultation into significant changes to flexible working rights. Our employment law team looks at what it could mean for employees - and employers.

For millions of people, the pandemic has changed the way they work - probably forever.

Flexible and hybrid working are now the norm for many businesses, including at Higgs LLP where additional freedom has been given to our people to work either from home or from the office as they see fit.

This was something the country was edging towards even before Covid-19 entered our lives, but the subsequent lockdowns certainly accelerated the process as businesses discovered their employees were capable of doing their jobs remotely.

Significantly, the Government has now launched a consultation on making flexible working the default in order to ‘help employees to better reconcile their work and non-work lives’ and ‘help employers to secure the business benefits of flexible working’. The consultation seeks views from individuals and businesses.

Although the pandemic has undoubtedly had an impact on the Government’s thinking, reforming flexible working regulations was included in its 2019 manifesto.

Perhaps the most important proposed change in the consultation is the right for employees to request flexible working from day one. Currently, workers may request to alter their hours, pattern and location after 26 weeks of employment but the Government wants to remove the perception of flexible working being a ‘perk’ which an employee must earn.

It's important to note that the employer will still be able to reject the request on the basis of one or more of the eight statutory business grounds. However, the Government wants to see a shift towards a better discussion between the employee and the employer of what may be possible rather than the current focus of what is not possible.

It will be interesting to see how this would work in practice. For example, if an employer agrees a job applicant’s working hours and pattern with them prior to offering them employment and then the employee puts in a flexible working request on day one of the job, this could be frustrating and time consuming for employers. However, the Government states the proposals would enable job applicants to ask questions about flexible working during the recruitment process and the employer would likely consider their response during this stage.

A second possible change is requiring employers to set out alternatives that have been considered when rejecting a flexible working request. Currently employers must state one or more of the eight business grounds set out in the statutory framework when rejecting a request. Examples of acceptable reasons include flexible working negatively affecting the quality of performance of the individual, not being able to reorganise work and extra costs for the business.

The Government says it wants to ‘encourage a culture where employers give full consideration to requests’ by requiring employers to set out the alternatives when rejecting a request. This would ensure that flexible working requests are taken seriously and considered thoroughly, but the extent of an employer’s obligation to explore alternatives would need to be clearly set out in statute in order to provide employers with the clarity they will need to adhere to the law.

Finally, the consultation looks at time constraints. Under the current statutory framework, an employee can make one flexible working request every 12 months and an employer has three months to communicate the outcome.

The Government is exploring whether allowing more than one request per year would make the process more ‘dynamic’ and respond better to an individual’s changing circumstances. Furthermore, the Government may consider reducing the current three-month timeline for employers to provide the outcome to the request.

Providing employees with the ability to make more than one request a year would reflect the fact that an individual’s circumstances can change considerably in 12 months. However, on the flip side, making a limitless number of requests could lead to HR departments being inundated with requests and not having the resources to deal with them appropriately.

These are all fascinating potential developments and we await the outcome of the consultation and continue to monitor the area closely.

Businesses are likely to need support as and when these changes come in. At Higgs, we have the expertise and experience to prepare the necessary documents and advise clients on the process when flexible working requests are made.

Employers should be mindful of the risks of indirect discrimination claims when rejecting flexible working requests, especially where employees are returning from maternity leave or have caring responsibilities. There have already been examples of employees successfully taking their employers to tribunal over a rejected flexible working request, including Thompson v Scancrown Ltd t/a Manors, in which a female estate agent resigned after her request to move to a four-day week and to finish the working day earlier was rejected.

The claimant was found to have been indirectly discriminated against on the ground of sex and was awarded around £185,000.

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