Last reviewed 29 September 2021

The Government has recently launched a consultation into the suitability of the current flexible working legislation, and proposals to change it. Here, Stacie Cheadle, HR Content Consultant at Croner-i, explores the proposals.

The consultation, open until 1 December 2021, puts forward proposals that aim to make flexible working the default position for employers, putting stricter requirements on employers’ justifications for refusing a request, and making changes to the procedures for making a request.

The consultation

The main considerations of the proposals are as follows:

  • making the right to request flexible working a day-one right for all employees 

  • Aassessing whether the eight business reasons for refusal are still valid  

  • requiring employers to suggest alternative options when refusing a request, with a view to making flexible working requests more accessible and putting the onus on the employer to provide options

  • assessing the administrative process for flexible working requests — specifically, whether employees should be allowed to make more than one request per year and whether changes should be made to the current three-month response time that employers have to process requests 

  • assessing requests for temporary flexible-working arrangements and informal requests.  

Flexible working in its current form

The flexible working legislation underwent a huge change in 2014, with the removal of the previously very prescriptive process and the introduction of a simplified “decision period”.

Those categorised as “employees” have a statutory right to request flexible working after 26 weeks of continuous service. You can choose to allow requests to be made before that date, as long as this is done consistently for all employees, but you do not have to. Once a request has been made, another cannot be put in within 12 months.

Specifically, the right is to request flexible working, not insist on it. Legally, you have to consider all qualifying requests, and give reasons for refusing, but it is a limited right.

To make a statutory flexible working request, the employee must:

  • make the request in writing

  • state that it is a statutory request for flexible working

  • date the request

  • specify the date on which the employee would like to start flexible working

  • detail the change that is requested

  • explain the effects that the employee thinks the requested change would have on the employer's business

  • explain how the employee thinks any such effects might be dealt with

  • state whether the employee has made a previous application for flexible working, and if so, the date that application was made.

The process at the moment is relatively straightforward. From the time the application comes in, you will have three months to complete the process. This is as per the statutory code of practice on flexible working, which also requires requests to be dealt with reasonably and without undue delay. It is worth noting here that the code of practice will likely need to be updated if the changes in the consultation are introduced.

The first step is to hold a meeting to discuss the request with the employee, before a decision is made. The employee should be allowed to bring a colleague to this meeting. This is a chance for the employee to provide reasons for the request and for both parties to work out how they can put the flexible working pattern in place. For example, you might agree on a trial period to see if the arrangement could work short term. If you think you may be unable to accept the request, you may also discuss if there are any alternatives that might be more suitable for you and the employee.

After the meeting, you must go back to the employee with a decision, either way. If you decide to refuse the request, it should be based on one or more of the following eight reasons:

  • The burden of additional costs.

  • Detrimental effect on ability to meet customer demand.

  • Inability to reorganise work among existing staff.

  • Inability to recruit additional staff.

  • Detrimental impact on quality.

  • Detrimental impact on performance.

  • Insufficiency of work during the periods the employee proposes to work.

  • Planned structural changes.

Whichever reasons are selected, they should be explained to the employee so as to justify the refusal. As the employee can appeal the decision, giving robust reasons is best.

Implications for employers

At this time, nothing has changed for employers, so there is no need to start making immediate changes. However, this has become a hot topic of late, and is likely to get a lot of focus and support. Therefore, it would be beneficial to start reviewing current flexible working policies and procedures now, especially if flexible working requests are already coming in for homeworking.

Ideally, you are already dealing with flexible working requests without undue delay, so if the changes are brought in this shouldn’t have too much of an effect. The underlying process is going to largely remain the same, and the ability to refuse is going to stay, so employers will still maintain some control over where and when employees work.

The biggest consequence that these changes are going to have for employers is the move towards flexible working being a default position. More and more, a response to the pandemic has been for people to assess their work/life balance and consider what changes can be made to make it better. With the emphasis on the reasons for the refusal, and the need for the employer to suggest alternatives, there will be more to consider when refusing the request than there was before. This is an opportunity for employers to assess their working practices and what they can offer employees, and it can help to boost recruitment and retention of staff.

For now, it is a case of keeping an eye on the consultation and waiting for the outcome. Even if the decision is made to make these changes, it is still going to take time to come through and therefore there is no need to start implementing these changes now.