Consultation on Making Flexible Working the Default

The Government has published a consultation – “Making Flexible Working the Default”– which includes a proposal to make the right to request flexible working a day one right.  This area of employment law remains high on the agenda for many employers as they adjust to new working practices following the pandemic.

What is the current position?

Currently, employees have the right to make a formal flexible working request after they have 26 weeks’ continuous service.  Employers must respond to requests in a reasonable manner within a three month timeframe, and can only deny requests for one of eight prescribed business reasons (for example, the burden of additional costs or an inability to recruit additional staff).  An employee can only make one request in any 12 month period.

What is the new proposal?

The Government’s consultation seeks “to support flexible working in all its forms – so that employers and employees are better able to consider and make arrangements which suit their particular circumstances”.  It considers:

—  Whether the right to request flexible working should be made a day one right;
—  Whether the existing eight business reasons for refusing a request all remain valid;
—  Whether an employer should be obliged to suggest alternatives if they refuse a request;
—  If the administrative process underpinning the right to request flexible working should be changed; and
—  How to make better use of the provisions which allow a temporary flexible arrangement to be requested.

Key takeaways for employers

—  Despite the eye-catching title of the consultation, it is clear that the main proposal is to make the right to request flexible working a day-one right, rather than requiring employees to wait until they have 26 weeks’ service.  If the proposal is implemented, employees will still, therefore, need to have requests approved – it will not become an automatic right (on day one or otherwise) despite many employees working flexibly and/or from home throughout the pandemic.
—  The proposals do not create a right to work from home, although any request for flexible working could of course include a request to work from home.
—  If the proposals are implemented, there is likely to be an increased burden for employers not only in terms of an increase in the number of requests, but also in how they need to deal with those requests.
—  It is more important than ever for employers to consider their Flexible Working, Home Working and Hybrid Working policies and to ensure these are up to date and fit for purpose.
—  Employers have until 1 December 2021 to respond to the consultation.

A warning on risk

Dealing with flexible working requests fairly whilst balancing the needs of a business is a notoriously tricky and potentially expensive area, as demonstrated by the recent high profile case of Thompson v Scancrown Ltd T/a Manors.  Mrs Thompson successfully argued that the refusal of her flexible working request, which she made for childcare reasons, amounted to indirect sex discrimination.  Her employer’s failure to properly consider her request resulted in an award of just under £185,000 in compensation by an Employment Tribunal.

Employers should be alive to the need to consider and respond to flexible working requests properly if they are to avoid costly claims.