Employees to have the right to Flexible Working from day one – The Government’s latest response

The ‘flexible working’ right was introduced in 2003 and it provided employed parents and other eligible carers who had 26 weeks’ continuous service the right to request a flexible working arrangement. This new right aimed to support them and suit their needs, by enabling them to make a request to change their work location, working hours, and/or their working pattern.

The right to request flexible working was extended in 2014 to include all employees with 26 weeks continuous service.

In 2021, the UK Government published their consultation on ‘making flexible working the default’, which considered whether the right to flexible working should be a day one right.

More recently, the government have provided their response to last year’s consultation. Their response includes various updates to new flexible working laws, which aims to make flexible working the ‘default’.

The proposed new flexible working laws:

One of the main measures introduced in the government’s response is that the right to request flexible working will become a Day One right. This will amend the previous law where employees with 26 weeks continuous employment were only eligible. However, it is emphasised that this is still just a right to request, and not a right to have flexible working.

During the pandemic, we saw a significant amount of employers and employees shift to homeworking, which has since become ‘hybrid working’. Therefore, this change will acknowledge this move, but also consider other conversations relating to working hours, working patterns etc.

Employees will also be allowed to make two requests in relation to flexible working arrangements within a 12 month period, and employers will need to respond to any requests within two months. Currently, the law only allows employees to make one request within this period, and employers are to respond within 3 months.   

The government will also introduce a new duty on employers to discuss alternatives to the flexible working request. If an employer intends on rejecting the request, they must discuss whether there are any alternative forms of flexible working available to that employee. However, it is not yet clear whether this is just to be guidance for employers, or whether it will be a statutory requirement.

When making a flexible working request to an employer, employees currently need to provide an explanation as to what effect, if any, the change they have applied for would affect their employer and the business, and how the change may be dealt with. However, the latest government response states that they will remove this requirement, meaning that employees will not need to provide any explanation in relation to the impact or change on the business. This will simplify the procedure for employees.

One thing that won’t be changing any time soon, is the list of eight reasons the employer has to refuse a request for flexible working. For reference, the eight reasons are as follows:

1. Extra costs that will damage the business
2. The work cannot be reorganised among other staff
3. People cannot be recruited to do the work
4. Flexible working will affect quality and standard
5. Performance will suffer
6. The business will not be able to meet customer demand
7. There’s a lack of work to do during the proposed working times
8. The business is planning changes to the workforce

When will these measures be implemented?

The consultation does not include a timescale for these changes but acknowledges that primary legislation will be required. It would seem likely that these changes may be implemented sooner rather than later.