The Government has published its response to the ‘making flexible working the default’ consultation that it ran in 2022, confirming that it will make the right to request flexible working a right from day one of employment.
What is changing in flexible working?
The right to request flexible working will be available from day one of employment, removing the current 26 weeks’ continuous service qualifying period.
Employers must consult with an employee who is making a flexible working request, to explore the available options before rejecting their request.
An employee will be able to make up to two requests for flexible working within a 12-month period (currently employees can only make one request within a 12-month period), and employers will need to respond to the request within 2 months (currently 3 months).
There will no longer be a requirement for the employee to set out in their application how an employer might deal with the effects of their flexible working request, as it is expected that this will be discussed during consultation.
What aspects of flexible working are not changing?
The right remains purely a right to request; there is no entitlement to be granted flexible working.
Nevertheless, a blanket refusal to accept any flexible working pattern might, in some circumstances, be indirectly discriminatory unless it can be objectively justified.
For example,
- a requirement to work full-time may be indirectly discriminatory against women with childcare responsibilities; and
- a requirement to work in the office could potentially be indirectly discriminatory against disabled employees if their health condition makes their commute more difficult.
If an employer refuses a flexible working request they will still need to give one of the eight statutory business reasons for refusing the request.
Next steps for employers
- Employers will have to deal with any flexible working requests within 2 months of receiving them, unless there is a mutually agreed extension. This change will ensure that requests are handled promptly and employees receive a timely response.
- Employers will no longer be able to refuse a request outright without having first ‘consulted’ with the employee. However, the Act does not specify the minimum requirements for this consultation process, leaving it open to interpretation by employers.
Next steps for employees
- Employees will now be able to make two flexible working requests within any 12-month period.
- Employees are no longer required to explain how their flexible working request may impact their employer or propose how any potential issues arising will be addressed. This change reduces the burden on employees when submitting their requests and leaving it up to employers to manage their respective teams accordingly.
When does the Employment Relations Bill come into force?
The government will enact legislation to put the changes into effect when Parliamentary time allows (who knows when this will be!) and will support the Private Member’s Bill “Employment Relations (Flexible Working) Bill” as it progresses through Parliament.
Enhanced guidance will be developed to raise awareness and understanding of how to make and administer temporary requests for flexible working.
Contact us with your Employment Law queries
If you have any questions about how these changes affect your working life or your relationship with employees, please contact our Employment team and we will be happy to help.