Right to request flexible working to become a day one right

The government's response to the consultation on making flexible working the default was published on 5 December 2022. It confirms that the existing statutory process will be amended in several respects. Most significantly the 26-week qualifying period for requesting flexible working is to be removed.

Consultation on making flexible working the default

In the UK, there is no right to work flexibly. However, since June 2014 all employees with 26 weeks' continuous service have had a right to request to work flexibly.

In 2021 the government consulted on making flexible working the default unless there is a good reason for it not to be. The consultation set out specific proposals aimed at ensuring that the statutory framework remains fit for purpose. It received over 1,600 responses and the government's conclusions were published on 5 December 2022.

The majority of responses across all interested groups indicated strong support for flexible working and the benefits it can bring which, as the government notes in its response, can include:

For employees: improved access for women; support for fathers wanting a better work/life balance; older workers being able to continue working; equality of opportunities; and reasonable adjustments for disabled workers.
For employers: improved productivity; reduced absence; more applicants for vacancies; increased retention levels; reduced recruitment costs; wider diversity; and better employee relations.

How is the flexible working request process going to change?

The government has confirmed that, to meet its policy objective of 'normalising flexible working', the existing statutory process will be amended as follows:

Day one right to request flexible working	The 26-week qualifying period before employees have a right to request flexible working will be removed, making it a day one right. This is a significant change - it has been suggested that making flexible working more accessible will allow an additional 2.2 million people to enter the labour market. 91% of those responding to the consultation were in favour of it. The government said in its response that "We heard that making the right to request flexible working a day one right would help to remove perceptions that flexible working is something that has to be “earned” rather than the norm. It was argued that this would encourage people to seek conversations with their employers about flexibility at work." Interestingly 69% of employer consultation responses indicated that they already accept flexible working requests from day one.
Consultation with employees about their requests	Employers will have to show that they have consulted with the employee and considered alternatives to the requested proposal before rejecting a flexible working request. 94% of respondents supported this principle (which is consistent with the existing ACAS code of practice on handling flexible working requests). It is not clear yet what the precise requirements will be.
More responsive flexible request process	Employees will be able to make two statutory flexible working requests in any 12-month period (only one request every 12 months is permitted just now). The standard deadline (where no extension has been agreed) for responding to flexible working requests is to be reduced from three months to two. There was support for both proposals despite concerns from some employers around increased administrative burdens (in particular, the new two month deadline is relatively short given that it includes time spent hearing and responding to any appeal). Generally, however, it was acknowledged that the changes were required because circumstances can change within 12 months, and delays in response times can create stress and uncertainty.
No requirement on employee to explain how employer might deal with impact of their request	Employees will no longer have to explain in their request what effect the change would have on the employer and how that might be dealt with. Rather than putting the onus on the employee, the government's view is that employers should instead engage with employees to jointly understand what the impact of a flexible working request would be.
Temporary and informal arrangements	Temporarily adjusted working arrangements can often be helpful, for example to attend appointments or manage a fluctuating health condition. However, 63% of respondents were unaware that it is possible to make a temporary statutory flexible working request. Guidance will be developed to raise awareness and understanding of how to make and administer temporary requests for flexible working. There will also be a call for evidence to better understand how informal flexible working operates in practice.

Reasons for refusing a flexible working request

The consultation asked for views on whether the eight existing business reasons for refusing a statutory request for flexible working remain valid. These are:

The burden of additional costs
Detrimental effect on ability to meet customer demand
Inability to re-organise work among existing staff
Inability to recruit additional staff
Detrimental impact on quality
Detrimental impact on performance
Insufficiency of work during the periods you are proposing to work
Planned structural changes.

Although there was support for changing the list, particularly considering the recent increase in home and hybrid working, there was no clear picture of a way forward. The government has therefore decided to keep the existing list of reasons, highlighting instead the need for effective conversations between employer and employee about the reason(s) for rejecting a request.

When will the changes happen?

The changes will be made in terms of the Employment Relations (Flexible Working) Bill, a government supported Private Members' Bill, other than the day one right to request flexible working which will be delivered through secondary legislation. We don’t yet have a proposed timescale - the government has said the changes will be brought in 'when parliamentary time allows'.

Workbox by Brodies

Users of Workbox by Brodies, our online HR and employment law site, will find useful guidance on Flexible Working. As well as FAQs on the process to follow after receiving a flexible working request, there are template letters and a policy.