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Summary

The Department for Business, Energy & Industrial Standards (‘DBEIS’) recently published a fresh consultation on flexible working practices in the UK. The Consultation has made national headline news, and has brought flexible working policies to the attention of employees across the UK. Below we have summarised what employees need to know about the key aspects of the Consultation.

Published on 23 September 2021, ‘Making Flexible Working the Default’ is the follows several years of government intention to encourage flexible working. The Consultation sets out five proposals concerning the current flexible working regime, built around the principle that working arrangements are best decided through a constructive, open-minded discussion between employer and employee. It draws on experiences of the pandemic and is part of the Government’s objective of building back better.

  1. Making the right to request a “day one right” – Under the current regime an individual must have 26 weeks service before they can make a flexible working request. This proposal would remove this requirement.
     
  2. Making changes, if necessary, to the eight business reasons for refusing a request to work flexibly – The current regime lists eight reasons upon which employers can refuse flexible working requests, the Consultation seeks views on these but doesn’t propose any amendments.
     
  3. Requiring the employer to suggest alternatives to the arrangement suggested by the employee – The rationale for this proposal is promote and support discussion between the employer and employee; if an employer felt that an employee’s request was not possible, there might be a way to find another option.
     
  4. Changing the administrative process underpinning the right to request flexible working – Currently an employee may make one statutory request every 12 months and an employer has three months to consider whether that request can be accommodated, the Consultation seeks views on whether allowing employees to make more than one statutory request per year would make the legislative framework more responsive to changes in an individual’s circumstances.
     
  5. Raising awareness of the existing right of employees to request a temporary flexible working arrangement – The current framework already provides for a temporary arrangement to be agreed between the employee and employer. The Consultation suggests this may be under-utilised.

Changes to the regime around flexible working have been in the pipeline for some time. The Consultation proposals are not as radical as the headlines may have suggested, particularly following the changes to working seen during the pandemic and even if each proposal is adopted, employers will still retain the right to reject any flexible working request on one of the statutory business reasons. The Consultation closes on 1 December, and we can expect the Government to publish the response to the Consultation in 2022.

For further information on flexible working see our previous article: Flexible working requests and working from home in the wake of the Government’s roadmap out of COVID-19 lockdown.