Government publishes response to consultation on flexible working

Posted: 06/12/2022

The Department for Business, Education & Industrial Strategy (BEIS) has this week published its response to the consultation on flexible working, which was published in September 2021, following the change to working practices brought about by the Covid-19 pandemic.

Although the response, which can be found here, is not groundbreaking and does not go as far as some had called for, it is generally positive about the role of flexible working in today’s workplace and makes some sensible suggestions for change. These include:

• Making the right to request flexible working a day one right for all employees - currently employees must have 26 weeks’ service in order to make a request. 91% of those responding to the consultation document were in favour of this change, recognising benefits to both employers and employees. The government stopped short, however, of creating the right to work flexibly from day one of employment (the right will remain a right to make a request for flexible working), stating that there is ‘no one size fits all approach to work arrangements’.
• Requiring employers to consult with employees to look at alternative options before declining a flexible working request. It is not clear from the response how this will work in practice, but it is a sensible and welcome change, and will bring the statutory regime in line with the non-binding ACAS Code of Practice.
• Increasing the number of flexible working requests that an employee can make in any 12-month period from one to two.
• Reducing the time limit for an employer to respond to a flexible working request from three months to two.
• Removing the requirement on employees to set out the effects of their flexible working request on the employer and to include suggestions as to how it might be dealt with. This is recognised as an unnecessary burden on employees, which can lead to unfair and discriminatory outcomes. It would be particularly hard for employees to comply with this step when making a request from day one of their employment, when they will be unfamiliar with the employer’s working practices.

The government will not, however, be making any changes to the existing eight statutory reasons for refusing a flexible working request, despite some calls for this list to be revised. These will remain as follows:

• the burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to reorganise work among existing staff;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• insufficiency of work during the periods the employee proposes to work; and
• planned structural changes.

In the response, BEIS also commits to additional non-legislative action, including guidance for employers and employees to raise awareness and understanding of how to make and administer temporary requests for flexible working. It additionally makes a call for evidence to understand better how informal flexible working arrangements operate in practice.

Welcoming the government’s proposals, the chief executive of the CIPD, Peter Cheese, stated that the new plans would make workplaces "more inclusive" and will “improve access to flexible jobs for many people”. Frances O’Grady, general secretary of the TUC, however, called for the government to go much further “to ensure that flexible work now becomes the norm”, pointing out that the right should be to work flexibly from an employee’s first day in a job, not simply the right to make a request.

There is currently no timeframe for the implementation of these changes, some requiring primary or secondary legislation, or a call to evidence, before they can be brought into force. Many have been waiting a long time for changes to the flexible working regime to be introduced and will be frustrated by the continued lack of progress; however, the response to the consultation is an encouraging first step in the process and will be welcomed by employers and employees as they look for certainty in the post-Covid workplace.

For further information as to how this might impact your organisation, please contact Paul Mander.

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