On 23 September 2021, BEIS published a consultation document proposing reforms to the right for employees to request flexible working.
The proposals included several changes meant to broaden the rights to flexible working by encouraging a more involved conversation between employee and employer about flexible working in the business and the individual’s needs.
We should stress here that the government is not proposing an automatic right to flexible working, it appears it will not go that far.
The idea behind the changes is that they will support a much wider discussion of what could be possible, as opposed to the current focus of what is not possible.
So, what are the key proposed changes to the flexible working regime?
- Making the right to request a day one right – by removing the present 26 weeks service requirement, so that means it will likely be needed to be considered in recruitment at the outset.
- Making changes, if necessary, to the 8 business reasons for refusing a request for flexible working – that may of course place more of a burden on employers, particularly when taken together with the requirement for employers to actively suggest alternatives (see below) to proposed arrangements, that part appears to mean a much more engaged process rather than a review of what is suggested and a reliance on the grounds for refusal without any further engagement – thus, it will shift the emphasis onto more review and analysis by the employer.
- Adjustments to the present administrative process – that may be to shorten the time employers have to respond to a request, presently at 3 months, again adding more pressure on the employer to handle these requests quicker whilst engaging more as noted above.
Overall, these processes are already tricky with decisions often being challenged as discriminatory under the Equality Act 2010. Our view is that, whilst this does give more depth to the process and speeds it up, employers will need to: -
- Keep an eye out for these changes.
- Adjust their policies and processes to avoid breaches and claims.
- Ensure those handling requests are trained and know what they’re doing.
We’ll update further as these changes progress.