The COVID-19 pandemic has led to dramatic changes to how employers and employees work, with an overnight switch from traditional office-based working to predominantly home-based working. In light of this, the Department for Business, Energy and Industrial Strategy has sought to keep pace by launching a consultation process aimed at making flexible working the norm for employees.
The consultation consists of five proposals designed to encourage employers to incorporate flexible working into their standard practices. These are:
- Permitting employees to apply for flexible working from their first day of employment;
- Considering whether the current eight prescribed reasons for refusing a flexible working request remain valid;
- Deciding whether an employer rejecting a request for flexible working should be obliged to suggest alternative arrangements;
- Looking at the administrative process underpinning flexible working requests; and
- Considering requests for temporary arrangements.
Changing the current framework
Flexible working incorporates more than just working from home. It encompasses other flexible working arrangements, such as job sharing, part-time hours, flexible start and finish times, and working compressed, annualised or staggered hours. Changes are currently made on a permanent basis, but applicants can also request changes only for a specific period. The consultation notes that temporary changes are not often requested, inviting views about increasing the use of this right.
An employer is not automatically obliged to allow employees to work flexibly. The consultation does not propose changing this, but it does look at removing the need for an employee to have 26 weeks’ continuous service in order to make a request for flexible working.
Employees are currently restricted to one flexible working request within a twelve-month period. Any applications should be considered within a three-month period. The consultation considers removing both to recognise that an employee’s personal circumstances can change, requiring additional flexible working applications.
Currently, employers can reject a request for flexible working on eight prescribed grounds:
- Burden of additional costs;
- Detrimental effect on meeting 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 proposed working periods; and
- Planned structural changes.
The consultation envisages retaining prescribed grounds for refusal, but the government is to consider whether the current eight remain appropriate, while also considering whether employers should look into alternative flexible working proposals if an application is to be rejected.
Should the consultation ultimately lead to changes along the lines proposed, these will likely be welcomed by employees looking to adapt their working life to suit their personal circumstances. This may place a greater administrative burden on employers by increasing the number of flexible working requests and imposing expedited timeframes. However, over recent times the working landscape has been transformed – flexible and hybrid working are now at the forefront of employers’ minds, and so the impact of any legal changes may be limited.
How we can help
Our Employment Law team at TWM are experts when it comes to providing advice, support and representation to employers and employees in relation to flexible working related matters, including:
- Helping prepare or evaluate flexible working requests
- Advising on the legal issues arising from requests, such as potential discrimination liability
- Resolving flexible working disputes, whether in connection with appeals against rejected requests or grievances raised asserting breaches of employment rights (for example, discrimination), or representing parties in Employment Tribunal claims challenging decisions.
