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Government starts consultation on flexible working

An improved approach to flexible working is a key part of the Government's aim to 'build back better' from the pandemic, and as such a consultation has been launched which sets out a number of proposals in respect of flexible working, in all its forms. These are built around the principle and on the understanding that working arrangements are best decided through open-minded dialogue between employers and employees. The government intends to provide what it calls an 'enabling framework' within which these conversations can take place, rather than setting out specific, more rigid legal requirements.

The Government has set out five specific proposals, for England, Wales and Scotland, with the primary intention of all five being to encourage conversations and a culture that supports and promotes 'two-sided flexibility':

Making the right to request flexible working a 'day one' right:

At present, employees can only make a request to work flexibly if they have worked for their employer for at least 26 weeks (statutory minimum). The Government believes that making flexible working available at the outset of the employment relationship will help encourage employers to consider flexible working options early in the recruitment process and give employees more confidence to make a request.

Ensuring that the eight business grounds for turning down a request remain valid:

Employers who turn down a request to work flexibly under the statutory scheme must be able to point to one or more of the business grounds set out in the legislation. The Government wants to find out if the existing business reasons are still appropriate.

Requiring the employer to consider alternatives:

Employers can currently turn down requests to work flexibly if they have relevant business reasons for doing so and employers do not have to consider alternatives to the one proposed. The Government wants to explore whether it is practical to ask employers to set out, when rejecting a request, what alternatives it considered. It believes that asking employers to consider alternatives will help influence organisational norms.

Reviewing the administrative process underpinning the procedure:

Currently, employees can only make one statutory request every twelve months and their employer then has three months to consider it. The Government is considering removing this limitation so that employees can make more than one request each year to reflect changes to their personal situations. The Government is also considering changing the three-month time limit employers currently have to respond to requests to work flexibly (which can be extended by agreement) to a shorter period - one option is for the process to be concluded in less than two weeks.

Requesting a temporary arrangement:

Currently, if an employer agrees to a flexible working request, it will be a permanent change to the employee's terms and conditions of employment unless agreed otherwise. The Government believes that the ability to request a temporary arrangement is under-utilised and is seeking views on whether employers are aware that they can agree short-term arrangements.

Next steps

The consultation will remain open until 1 December 2021 so we would expect to see the outcome responses towards the middle of 2022.

Flexible working has never been more topical and is extremely valuable for both employers and employees. The response is eagerly awaited, together with further information on what practical changes we can expect to see.

For more information contact Alice McKenna in our Employment & HR department via email or phone on 01254 222373. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Employment & HR department here

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