Still a right to ask, not to have - UK government responds to flexible working consultation

In 2021 the government consulted on how to make flexible working the default. It has now published its consultation response, which confirms that it will make several changes to the current framework for making flexible working requests. However, the reasons on which employers can rely to refuse requests will not be changed.

Key points

The key points from the response include:

• Employees will have a right to request flexible working from day one of their employment. At the moment employees can only request flexible working under the statutory procedure if they have 26 weeks’ service. The government believes this change will encourage job mobility and expand the labour market.
• Employers will have to consult employees about a request. The ACAS Code of Practice on handling flexible working requests already encourages employers to discuss requests with employees, so this is unlikely to represent a significant additional burden.
• Employees will be able to make two requests for flexible working a year, instead of one.
• A “reasonable” period for deciding a request will reduce from three months to two, although it will still be possible for employers and employees to agree to extend that period if necessary.
• Until now, employees making a flexible working request have needed to explain what the effect of the proposed change would be on their employer and how it could be dealt with. The consultation concludes that this is an unnecessary burden for employees, particularly those making a “day one” request, and will remove it.

The government has decided not to change the list of permitted reasons for refusing a request. The consultation is clear that the right to request flexible working remains a right to request not a right to demand and that the existing list of reasons for refusing a request continues to meet employers’ needs.

Next steps

Removing the service requirement for making a request does not need primary legislation so the government will introduce secondary legislation to achieve this. The other changes will be implemented through the Employment Relations (Flexible Working) Bill, a Private Members’ Bill that has government support.

It is interesting to note the government’s extensive use of Private Members’ Bills to progress its employment law agenda. There are currently at least six Private Members’ Bills with government support that will make significant changes to the existing legal framework if they complete their passage through Parliament. In addition to the flexible working changes, these include a new duty on employers to prevent sexual harassment, entitlements to neonatal leave and carer’s leave and extended protection against redundancy for employees who are pregnant or returning to work from family leave. 

Authored by Jo Broadbent and Stefan Martin.