Lawyers Urge Businesses to Engage In The Process

Lawyers at Irwin Mitchell are reminding businesses that they have until 1st December to respond to the government’s consultation about flexible working.

The new consultation ‘Making flexible working the default’ was launched in September 2021 and it sets out five specific proposals:

Making the right to request flexible working a 'day one' right

Currently employees can only make a request to work flexibly under the statutory procedure if they've worked for their employer for at least 26 weeks. The government believes that making flexible working available at the outset of the employment relationship will help encourage employers to consider flexible working options early in job design/recruitment process and give employees more confidence to make a request. It is asking for views about whether the qualifying period can be removed and what benefits this might deliver.

Ensuring that the eight business grounds for turning down a request remain valid

Employers who turn down a request to work flexibly under the statutory scheme must be able to point to one or more of the business grounds set out in the legislation. The government doesn't believe that these present a disproportionate barrier to flexible working (they don't) and doesn't think that they need to be changed. However, it wants to find out if the existing business reasons are still appropriate. 

Requiring the employer to consider alternatives

Currently, an employer can turn down a request if it has relevant business reason. It doesn't have to consider alternatives to the one proposed (although, in practice, many employers do). The government wants to explore whether it's practical to ask employers to set out, when rejecting a request, what alternatives it's considered (and, if viable, presumably offered to the employee). It believes that asking employers to consider alternatives will help influence organisational norms.

Reviewing the administrative process underpinning the process

Currently, an employee can only make one statutory request every 12 months and their employer has three months to consider it. The government is considering removing this limitation so that people can make more than one request each year to reflect changes to their personal situations. It is also considering changing the three month time limit employers have to respond (which can be extended by agreement) to a shorter period. One of the options is for the process to be concluded in less than two weeks.

Requesting a temporary arrangement

Currently, if the employer agrees to an employee's flexible working request, it will be a permanent change to the employee's terms and conditions of employment unless the parties agree otherwise. The government believes that the ability to request a temporary arrangement is under-utilised and it wants to know if businesses are aware that they can agree short-term arrangements.

Expert Opinion

“Despite the name of the consultation, it doesn’t appear as if the government is in reality looking to make flexible working the default option.

“The government will not change the law to allow employees a 'right to have' flexible working and employers will be able to turn to requests they can't accommodate. Employees will still have to initiate the discussion, as they do now, and the focus of the consultation is to support employees to start these conversations and help employers to respond to them.

“These proposals are built around the principle that working arrangements are best decided through dialogue between the parties. We’ve seen a huge increase in the numbers of people who have made requests to work flexibly since the lockdowns ended and we haven’t seen any sign of this slowing down. It is therefore vital that businesses familiarise themselves with the proposals and engage with this consultation as it could have a significant impact in the future.”
Jo Moseley - Senior Associate Solicitor

The consultation is open to all businesses and responses must be submitted by this 11.45 pm on Wednesday 1 December 2021.