What do we already know?
We updated you in our January 2020 Newsletter Government reforms: New Year, New Law! that the Government had announced in the earlier Queen’s Speech that it intended to introduce the right to work flexibly from the first day of employment. This was planned to be part of the Employment Bill which was expected to come into effect later that year. However, the Employment Bill has not yet been introduced. Making flexible working the default was also part of the Conservative party’s election manifesto.
The Government has published a consultation (available here) which sets out proposals to make flexible working the default. ‘Flexible working’ can include flexible start and finish times, job sharing, part time working, and working compressed and/or annualised hours.
Although the consultation does not propose an automatic right for employees to work flexibly, it does include several measures which would broaden the scope of the right to request flexible working. These proposals demonstrate the Government’s continued commitment to flexible working and reflect the value which employees place on this, particularly as a result of increased opportunities during the COVID-19 pandemic.
The five main proposals are to:
- make the right to request flexible working a day one right for employees (to replace the current requirement of 26 weeks’ continuous service);
- assess whether the eight business reasons for refusing a request remain valid (particularly given the advances in flexible working demonstrated during the COVID-19 pandemic);
- require the employer to suggest alternatives to the employee’s request if the request cannot be accommodated (e.g. reduce the scope of the request);
- assess the administrative processes underpinning the right to request flexible working (e.g. allowing more than one request per year (as is currently the case)); and
- assess how best to encourage employees to request a temporary flexible working arrangement.
(This consultation closed on 1 December 2021).
This consultation shows that the Government’s intention to introduce flexible working as a day one right is still very much alive, despite the lack of any legislation yet. Also statistics set out in the consultation show how strong the demand for flexible jobs is: 87% of people want to work flexibly and 89% consider flexible working to be a key motivator to their productivity at work.
Given the above it seems very likely that scope of flexible working will increase and we recommend employers start to consider what changes they will need to make to accommodate this. Think about:
- Factoring in flexibility to the design of existing and new roles;
- Think about what sort of organisation you want to be – hybrid, agile, home based, office based?
- Educate the SMT/Board. If flexible working rights are extended, are they prepared and ‘on board’?
- Review existing flexible working policies. Are they a) fit to fairly and efficiently manage requests for flexible working – including any reasons you may have, if any, to have to turn down such requests (continuing to factor in the risk of indirect sex discrimination claims) and b) fit for purpose post-Covid.