The right to request flexible working will become a day one right, meaning that employees will be able to ask for a change to their working pattern from their first day of employment. As is the case now, the employer will need to deal with any request reasonably but, in a change to the current regime, they will have to consult with employees and consider alternative working patterns before rejecting a request.
In future, employees will benefit from being able to make two (rather than just one) requests in any 12-month period. In addition to potentially dealing with an increased number of requests, employers will have to become more efficient; they will have just two (rather than three) months to determine a flexible working request.
The mandatory information employees must give when making a request will be simplified – employees will no longer need to set out how their proposed working pattern will impact their employer.
Whilst significant features of the flexible working scheme will be changing, many will stay the same. For example, employers will still be able to use one (or more) of the usual eight business reasons to refuse a request for flexible working. Those reasons are:
- The burden of additional costs
- Detrimental effect on ability to meet customer demand;
- Inability to reorganise work among existing staff;
- Detrimental impact on quality;
- Detrimental impact on performance;
- Insufficiency of work during the periods the employee proposes to work; and
- Planned structural changes.
Presumably, even after these changes become law, it will be difficult for employees to challenge an employer’s assessment that one (or more) of the eight reasons apply.
Whether these changes, alone, increase flexible working remains to be seen. Though it is likely that more requests will be made as the reasons for refusal remain the same, we may not see more requests being approved. Critics could thus argue that the changes will lead to a significant additional administrative burden without any material shift towards “making flexible working the default” (the title of a 2021 Government consultation). However, with employers obliged to spend more time and resources dealing with flexible working requests, the changes will certainly draw attention to the issue of flexibility. This, coupled with the fact that the recruitment market remains candidate driven (and most candidates value a degree of flexibility), may mean that attitudes towards flexible working have to change.
Once the Bill and the day one right to make a request become law, policies will need updating and staff will need training in how to handle requests under the revised flexible working scheme.
Article by Maria Krishnan