Flexible working changes

The government has recently announced that it will introduce new legislation to enhance the ability of an employee to request to work more flexibly. We do not yet know when this will be implemented, but anticipate sometime in early April. Flexible working is commonly understood to be some form of home working however in practice, it can also apply to general changes to an employee’s working hours, and/or role.

The legislation proposes a number of changes:

1. Employees will have the right to ask for flexible working from the first day in a new job.

Currently this right is only available to employees who have been continuously employed for at least 26 weeks. The new legislation will lower this requirement to allow it to be a day one right. Employees will be able to make a flexible working request on the first day of their employment, even if they have not previously raised this through the interview or onboarding process.

2. Employees will no longer need to set out the impact their proposed flexible working pattern will have on employers.

Currently, when making a flexible working request, employees must explain what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with. This required the employee to think of ways to mitigate any negative effects. This is no longer required, although this will be a factor by employers when considering the request.

3. Employees will be allowed to make up to 2 flexible working requests in any 12-month period.

Currently employees can only make a flexible working request once in every 12 month period. This is being reconsidered to allow employees to make more than one request per year. Once two requests have been made, the employee will have to wait 12 months before bringing another formal request.

4. Employers have to provide a response to a flexible working request within 2 months.

Currently employers must respond to a formal flexible working request within 3 months of the date of the request. This requirement is going to be reduced, meaning employers must respond sooner than before, and no later than 2 months after receipt of the initial request.

5. Employers will now have to consult with employees, and consider all available options before rejecting a flexible working request.

This means that employers will have to discuss and consult with an employee to understand their request, and consider whether it is feasible. This will be a two-way discussion, whereas before, the onus was more on the employer to consider the request.

Given the dramatic changes in the workplace as a result of the coronavirus pandemic and subsequent lockdowns, it is not a surprise to see the government extending flexible working rights. However it is worth noting, although the proposed changes will give employees greater freedom in terms of making requests, fundamentally it doesn’t change an employer’s position, and doesn’t provide any additional employee rights to work flexibly. Although there is now a requirement to consult with an employee, the prescribed reasons for rejecting a request are still the same, and are set out below:

• The burden of additional costs.
• Detrimental effect on ability to meet customer demand.
• Inability to reorganise work among existing staff.
• Inability to recruit additional staff.
• Detrimental impact on quality.
• Detrimental impact on performance.
• Insufficiency of work during the periods the employee proposes to work.
• Planned structural changes.

An employer can still have to rely on one of the prescribed business reasons to reject the request.

Get in touch with an Employment advisor today

Please contact Employment law solicitor James Howarth on 0161 838 8131 or email jameshowarth@kuits.com for more advice on flexible working.