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The Government Consults on Making Flexible Working the Default

The government has launched a consultation on “Making Flexible Working the Default”, set to run until 1 December 2021, building on the clear case that exists, and has been brought to the fore during the Covid-19 pandemic, “to consider what more the legislation might do to support flexible working”.

In this alert, Partner Beth Hale discusses the proposed changes, concerns relating to the current framework and what proposals should address going forward in order to provide longer term benefit to both individuals and businesses.

The proposals

The consultation sets out, and seeks wider views on, five key proposals for reshaping the existing framework to better support the objective of making flexible working the default, namely:

  • Making the right to request flexible working a day one right;
  • Whether the eight business reasons for refusing a request all remain valid;
  • Requiring the employer to suggest alternatives;
  • The administrative process underpinning the right to request flexible working; and requesting a temporary arrangement.

The proposals set out in the government’s consultation are certainly a step in the right direction insofar as they represent a clear acknowledgement that the way in which many businesses now operate has changed significantly as a result of the Covid-19 pandemic, and the fact that the relevant legislation needs to be updated to reflect that widespread shift. The pandemic has reinforced for many businesses and employees that it is possible to work flexibly and effectively, and the government’s proposals to make the right to request flexible working a statutory day one right, amongst the additional proposals set out above, indicate its recognition that flexible working is now more or less the norm, and will indeed be expected by many job applicants now and in the future. However, that does not mean that home working or other types of flexible working arrangements will be suitable or appropriate for each individual or every business, and it is important to remember that there is no “one size fits all” approach that can be taken in respect of flexible working.

Historic concerns regarding the flexible working statutory regime

It has often been said that the current statutory framework regarding the right to request flexible working is deficient and lacks teeth; in particular, noting the limited redress and compensation available under the statutory scheme (a maximum of eight weeks’ pay). In certain circumstances, for example, if an employer refuses a flexible working request that has been made to facilitate childcare commitments or to seek adjustments because an employee is disabled, the employee may also be entitled to seek redress by pursuing a discrimination claim.

The legislation allows employers to remain very much in control of the process; whilst they are required to deal with requests “in a reasonable manner”, there is no statutory definition of what that process ought to look like. In selecting the appropriate ground for refusal, the wording of the legislation suggests that if the employer considers that one of the grounds applies, then the test is satisfied, and therefore there does not appear to be any element of objectivity required, other than as part of the general and seemingly vague requirement to deal with requests “in a reasonable manner”.

The way forward

Therefore, in reality, any proposals to truly reshape the legal framework regarding flexible working, and address its limitations, would need to go beyond seeking to make the right to make a request a day one right. Instead, it may be of significantly greater long term benefit, both for individuals and businesses alike, if the government, for example, commits to (a) reduce or limit in scope the long list of reasons that businesses can rely upon in refusing flexible working requests, which Tribunals will only be able to scrutinise to a limited extent if the matter ends in litigation; or (b) require employers to show that they have considered alternative working arrangements when refusing a request – both of which the government is currently seeking views on in its consultation. If these types of changes are not made in tandem with the introduction of a day one right to make a flexible working request, we may see very little change, in practice, to fulfil the primary aim outlined by the government to secure a genuinely flexible working-friendly culture across and within organisations. It will remain to be seen how far the government is willing to go in reshaping the legal framework in relation to flexible working, and to achieve lasting, meaningful change.

If you have any queries arising from this alert, or if you require specific legal advice in relation to flexible working, please contact Partner Beth Hale who specialises in employment and partnership issues for multinational employers, senior executives, partnerships and partners.

Read our Little Book of Employment Law here.

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