Government consultation on making flexible working the default: what could this mean for employers?

On 23 September 2021, the UK government published a consultation which sets out five main proposals in order to better support the 2019 manifesto promise of making flexible working the default. The proposals will also change the way employers must deal with flexible working requests.

Summary of the proposals

The consultation's five main proposals seek to encourage flexible working by:

making the right to request flexible working a day one right;
assessing whether the eight business reasons for refusing a request remain valid;
requiring the employer to suggest alternatives to the employee's request if the request cannot be accommodated;
assessing the administrative processes underpinning the right to request flexible working; and
assessing how best to encourage employees to request a temporary flexible working arrangement.

The consultation closes on 1 December 2021 and is available here.

What is flexible working?

Flexible working means more than simply working from home; it is best summarised as a way of working that suits the individual employee's needs. It can include flexible start and finish times, job sharing, part time working, and working compressed and/or annualised hours.

The consultation notes that there is strong demand for more flexible jobs, and that 89% of employees consider flexibility to be a key motivator to their productivity at work (more than the 77% of employees who consider their key motivators to be financial incentives).

Day one right

Currently only employees with at least 26 weeks' continuous service have the statutory right to request flexible working. By making the right a day one right, employers would be required to carefully consider the capacity for flexibility during the role design and recruitment processes. The government believes and hopes that this may lead to flexible working becoming the default (unless employers have good reasons not to allow it).

Validity of reasons for refusal

If an employer wants to refuse a flexible working request it may only do so for one (or more) of eight statutory reasons. These include that the extra costs will burden the business; that the quality of the work or employee's performance will be negatively affected; or that there is a lack of work to do during the proposed working times.

Under the proposals, employers will still be able to turn down a request where there are sound business reasons to do so. However, given the change in flexible working experiences recently (particularly though the COVID-19 pandemic), the consultation aims to determine whether the eight business reasons for refusal remain valid.

Suggesting alternatives

The proposed changes include an obligation on employers to suggest alternatives, where possible, if the flexible working request cannot be accommodated. Potential alternatives could include agreeing to a temporary rather than permanent arrangement, or to flexibility on some working days only.

Administrative processes

Under the current rules, employees may only make one flexible working request in any 12-month period. Once the request has been made, the employer has three months to consider the request in a reasonable manner and provide a response.

The consultation recognises that these restrictions may limit access to flexible working in situations where an employee's personal circumstances have changed (for example, for new parents or newly disabled people). The government is therefore considering whether employees should have a statutory right to make more than one flexible working request per year, and whether the three-month deadline for the employer to respond to a request remains appropriate.

Temporary flexible working arrangements

The consultation notes that although the current legislative framework permits time limited flexible working arrangements, this right is under-utilised. The consultation asks what would encourage employees to make temporary flexible working requests.

Job adverts and flexible working policies

The consultation confirms that the government will not introduce either of the following at this stage (both of which had been proposed as part of the 2019 Good Work Plan):

an obligation on employers to say in job adverts whether flexible working is available; or
a statutory requirement to publish a flexible working statement or policy (although it intends to continue to support this on a voluntary basis).

However, the government is due to review the impact of the gender pay gap reporting regulations in 2022 and, as part of that process, will consider whether to introduce a requirement on employers to publish their family-related leave and pay and flexible working policies.

Key considerations for employers

The current proposals don't go as far as making flexible working the default, and employers will still be able to reject requests for one or more of the statutory reasons where applicable. However, the statistics in the consultation paint a clear picture: employees want and value highly the opportunity to work flexibly. Many employees have been able to do so informally, or on a short-term basis, throughout the course of the COVID-19 pandemic and may want these arrangements to continue. This, coupled with the proposed changes in the law and the government's continuing focus on flexible working, may lead to an increase in formal statutory flexible working requests.

As a result, employers should revisit their flexible working policies, and ensure that they deal with any requests appropriately and fairly. Employers may also want to consider factoring flexibility into their role design and recruitment processes as employees may soon have the right to request flexible working immediately on commencement of their employment.