The Department for Business, Energy & Industrial Strategy (BEIS) has launched a consultation, which will run until 1st December 2021, seeking views on whether to make flexible working “the default position” for all employees from day one of employment.
Business Secretary, Kwasi Kwarteng, commented on the consultation:
“Empowering workers to have more say over where and when they work makes for more productive businesses and happier employees.
“It was once considered a ‘nice to have’, but by making requests a day-one right, we’re making flexible working part of the DNA of businesses across the country.
“A more engaged and productive workforce, a higher calibre of applicants and better retention rates – the business case for flexible working is compelling.”
The Government has set out various proposals for changing the current regulatory framework to support its overall objective, which includes:
- To provide workers will a legal right to be able to make a flexible working request from day one of employment which would remove the 26-week qualifying period that is currently in place. This includes requests to work from home and/or for alternative working patterns, e.g. flexitime, compressed or staggered hours of work.
- Whether the existing three-month period that employers have in which to decide the outcome of an employee’s flexible working request should be reduced.
- If the eight current reasons that employers can use to refuse a statutory request for flexible working should remain in place.
- If a request is refused by an employer, it must suggest alternatives working arrangements to the employee.
The Department for BEIS has said that businesses would still be able to reject a request if there are“sound business reasons” for doing so.
The consultation also sets out further steps to help make flexible working “the default” for employees. This includes a “Flexible Working Taskforce” considering how to build from the good and bad working practices adopted during the pandemic as workers return to the workplace and as employers implement new approaches to work.
The Flexible Working Taskforce will also consider how employers can embed a genuinely flexible working friendly culture across and within their organisations. As part of this, there are plans to launch a call for evidence that will consider the ad-hoc or informal flexibility that employees may require – e.g. time off work for a one-off appointment – instead of a contractual change to their working arrangements.
The Government has stated that it hopes that these changes if brought into legislation, will provide greater opportunities for those with disabilities, new parents and carers.
Carer’s unpaid leave
In addition to the proposals outlined above, the Government has also released its response to its consultation on ‘carer’s leave’ and has confirmed that it will be introduced as a day one right. This right will consist of one week (five working days) of unpaid leave per year for workers who are undertaking long-term caring responsibilities alongside work.
Carer’s leave will be available to applicable employees to take flexibly – ranging from half-day leave to a full week. The notice period for taking carer’s leave will be in line with the annual leave notice period – double the amount of time being requested, plus one day.
Carer’s leave will come into legislation when Parliamentary time allows.
How has the news of the consultation been received?
The Trades Union Congress (TUC) has said that the flexible working proposals do not do enough to satisfy the Government’s manifesto pledge to make it a default right for workers and that the plans were just “tinkering around the edges” as businesses will still have “free rein” to refuse employee’s flexible working requests.
According to Frances O’Grady, General Secretary of the TUC:
“Instead of tinkering around the edges, ministers should change the law so that workers have the legal right to work flexibly from the first day in the job. The right to ask nicely is no right at all.
“Not all jobs can support every kind of flexible working – but all jobs can support some kind of flexible working. And all job adverts should make clear what kind of flexibility is available.”
What are the current laws in respect of a flexible working request?
As stated previously, under the current rules, workers with at least 26 weeks’ continuous employment can make a request once every 12 months for flexible working under the statutory flexible working scheme to change their terms and conditions of employment relating to:
- How many hours they work;
- When that work is done; and
- Where that work is done.
For example, employees can request to work fewer hours per week, start work later in the day or work from home indefinitely or for a certain number of days each week.
For a request to be a valid flexible working request, it must contain certain prescribed information, as set out in the Employment Rights Act 1996, including:
- The changes the employee would like to make;
- The date the employee would like those changes to be effective from; and
- The effect the employee thinks the changes could have on their employer and how that could be dealt with in practice.
It is important to note that the legal right is for an employee to make a request to their employer and have that request properly considered, but not to insist that their employer makes the changes requested. However, an employer may only refuse a flexible working request if one or more of the prescribed grounds apply, for example:
- The burden of additional costs associated with the changes;
- Inability to re-organise work among existing staff or recruit additional staff to cover work;
- Detrimental impact on performance; or
- Detrimental effect on the ability to meet customer demand.
How should employers handle a flexible working request?
Based upon the current laws, an employer must notify an employee of its decision concerning their flexible working request within three months.
The date on which the application is deemed to have been made depends on the method the request was delivered by. If an employer does not think it will be possible to deal with and provide such a decision within that time frame, then it is open to the employer to seek the employee’s agreement for a longer time period.
Currently, whilst there is no fixed procedure that must be followed by an employer when considering a request for flexible working, ACAS has issued a Code of Practice on how to handle flexible working requests. Every employer should have regard to this, not least because any Employment Tribunal would have regard to the relevant provisions of this when considering a claim from an employee that their employer did not deal with their request in a reasonable manner. Broadly speaking, this suggests an employer should:
- Properly discuss any request with an employee in private and as soon as possible and allow an employee to be accompanied by a colleague at any meeting to discuss their request. This is the case unless an employer simply intends to grant a request without question, in which case a meeting is unlikely to be necessary.
- Consider every request carefully, weighing up the benefits of the request for the employee and the company against any potential adverse effects and ensuring that any decision is not discriminatory.
- Communicate its decision as soon as possible in writing to the employee setting out any grounds for rejection and, if rejected, allow an employee to appeal that decision.
If, after consideration, an employer is not of the view that the request can be accommodated in its current form, it should also consider whether this could be accepted but with modifications or whether a trial period could be implemented to test the impact of the changes in practice. We have found that using a trial period can be critical to the fairness of any refusal for a flexible working request.
Potential employment claims
In addition to claims relating to how a flexible working request is dealt with, employers also need to be alive to the risks of a discrimination claim associated with such requests. For example, employees may make a request based on their childcare responsibilities or to accommodate a disability or religious observance.
If the refusal of a request is found to be discriminatory, it is also extremely likely that this will be held to be a fundamental breach of an employment contract, entitling an employee to resign in response to that breach and claim constructive dismissal. In addition, any dismissal of an employee where the principal reason for dismissal is related to the employee making a flexible working request, bringing a claim relating to flexible working or being selected for redundancy on grounds relating to flexible working will be automatically unfair.