Reform of flexible working

The Government has launched a consultation relating to some amendments to the flexible working legislation making political mileage out of a willingness to make a request of flexible working a day 1 right, but what will their proposals really mean?

The current system works as follows: someone with 6 months service can make a request to work flexibly to their employer who must consider it within a reasonable time and can decline the request, provided their reasons for doing so falls within a list of eight business reasons for doing so. This covers things like the inability to service their customers, additional cost, the inability to reorganise work amongst existing staff or to recruit additional staff and a detrimental impact on quality or performance, if there is sufficient work during the period of time the employee proposes working and wider planned structural changes.

Given that it’s fairly straightforward for an employer to weave their way through, employees typically have to rely on the discrimination legislation to argue their request results in less favourable treatment of them compared with colleagues. For example, working mothers have often claimed indirect sex discrimination in comparison with the male workforce as regards fixed working hours and patterns of work because they are at a disadvantage as a result of the employer’s policies. The employer then has the ability to justify any indirect discrimination as a proportionate means of achieving a legitimate aim. Employees with caring responsibilities may have to rely on associative discrimination provisions or age discrimination to help them.

The Government’s consultation has asked for views on 5 different things:

1. Making the right to request flexible working a day 1 right by removing the 26 week qualifying period.
2. Whether the eight existing business reasons for refusing a statutory request remain valid.
3. Requiring employers to suggest alternatives if they intend to refuse a request.
4. The administrative process underpinning the rights to request flexible working and whether that needs any change.
5. Whether the right to request a temporary flexible arrangement might be utilised.

This tells us that the Government may be considering a separate right to the existing legislation which results in a permanent change to somebody’s working patterns if a request is accepted and that there might need to be a short term agreement but clearly there’s no definition yet to see what that might look like. Anyone who is a working parent trying to juggle children being sent home from school because of COVID-19 will surely have ideas about how such temporary flexibility might improve their lives.

The Government has already signalled that it will introduce a right to carers leave, which would be 5 working days of unpaid leave per year for employees to manage long term caring responsibilities outside of work and which would be able to be taken in any combination from half day to days or part of a week to the week. We have been told that the legislation will go before Parliament “when time allows”.

The CIPD emphasise that flexible working needs to be thought about in wider terms than just whether somebody is working from home versus working in the office. There is a whole range of flexibility in relation to flexi-time, part-time working, compressing hours such as working a 13 day fortnight and job shares.

The Government is going to be considering the lessons that have been learnt from COVID-19 and the undoubted seismic changes in what employees want in terms of their desires and preferences to spend less time commuting and how that is balanced against what employers want in terms of what is workable for them and what is in the interests of the business. Quite how that balancing exercise will play out will be interesting – from a legislator perspective, my money would be on incremental changes only and the employers retaining the upper hand but realistically, all employers needs to consider the current jobs market and the fact that employees are gravitating towards those organisations who they feel are most likely to meet their needs and any employer who is ignoring the issue of flexible working is likely to experience the implications in their attrition rates and challenges recruiting.

It’s always worth remembering to trial something before having to commit to it fully. Often a trial is the only way to successfully assess whether or not something works as a compromise for both parties.

Refreshing Law Ltd
23 September 2021