Alec Colson, a Partner and Head of Employment Law at Taylor Walton, discusses flexible working legislation. 

 

The Department for Business, Education, and Industrial Strategy released its answer to its flexible working consultation at the beginning of December 2022. The media’s headlines conveyed the idea that workers would be able to alter how they work from the first day of their job, but this isn’t actually the case. In the original consultation document, many recommendations were laid forth to reform the law such that workers with 26 weeks of service had the right to ask for changes to their employment contracts in the following instances:

• a change to the hours they work
• a change to the times when they are required to work
• a change to the place of work (as between their home and any of the employer’s workplaces).

The government’s plans set forward its desire to grant employees the ability to request flexible working arrangements from the very first day of employment.

If these ideas are implemented, an additional 2.2 million individuals would be able to request flexible working hours. This is intended to address the UK’s current skills crisis and encourage more young people, or those who are responsible for caring for others but were previously unable to commit to a full-time or workplace based position, to enter or return to the workforce.

It should be highlighted that this is only a right to “request” flexible working; it does not imply that such working patterns will always be permitted. An employee who has just been hired cannot immediately dictate their schedule. Under the proposals, the government will retain the current list of reasons that businesses can provide for refusing a flexible working request. These reasons are:

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

According to the plans, before denying a request for flexible working, businesses must speak with their employees and examine all other potential alternatives.

This is in keeping with the most recent ACAS Code of Practice for flexible working. Employers will be expected to reply to a flexible working request within two months rather than the existing three months, and employees will be allowed to seek flexible working twice in each 12-month period as opposed to the present single request.

There will no longer be a need for employees to explain how their desire for flexible working would impact the business. The government holds that employers should interact with employees to jointly work through the impact of the employee’s request for flexible working on the company rather than putting the entire burden of explanation on the employee to explain themselves and what they believe the impact of their request will have on the employer. This supports the idea that the ability to request flexible working should be available from the start, as a new employee would not be in a position to weigh the consequences of their request at the outset of their employment.

When will the proposed changes be implemented?

The government has not set a timeline for the above amendments’ adoption, and it could be some time until legislation is introduced. In actuality, the proposed amendments do not constitute new law but rather a revision of the already-existing rights to seek flexible working.

Despite this, employers could discover that the publicity around the changes and the intended changes inspire more workers to ask for more flexible scheduling for at least some of their working hours before or soon after starting a job. Anecdotal evidence indicates that many employees are already inquiring about hybrid working practises, job-sharing, compressed hours, flexitime, part-time, and term-time-only working while they are still only in the interview stage, and many flexible working arrangements of some kind will be agreed upon prior to employment.

As with all such employment matters, it makes sense for employers to seek advice and review their procedures before responding to these changes, as and when they come into effect.