Having delayed the consultation for some time, it is timely that the government is now consulting about reforms to the flexible working request rules, just as millions of people in the UK workforce probably have become used to flexible working in terms of location and/or hours as a result of the pandemic.
Since government guidance no longer required us to work at home where possible, some organisations have embraced both types of flexibility – the “work anywhere, anytime” approach. Others have reverted to pre-pandemic type, celebrating the “return to the office”. Others are in the middle, offering hybrid patterns of various types.
Will the consultation about the right to request flexible working lead to further changes? At this consultation stage there are no firm proposals, but we can draw a number of tentative conclusions about the eventual outcome:
- Flexible working would remain something that has to be requested, so potentially it will still be viewed as exceptional and needing to be justified, rather than just another “normal” mode. The consultation will not satisfy those who call for flexible working to be a default right. Although the consultation document refers to statistics showing that only a small percentage of flexible working requests are rejected, it rightly points out that the real issue is the number of requests that are not made because of fear of rejection or indeed of some form of victimisation or stigmatisation.
- However, under the draft proposals, the right to make a request would be a “Day One” right, so flexibility could perhaps be more easily factored into the specifications of a role or negotiations about the terms of a job offer. This may reduce the perception that flexible working is a “perk” rather than a norm.
- Changing the process for dealing with flexible working requests could lead to helpful improvements. At present, an employer must arrange a meeting to discuss a request but is under no obligation to really engage with it. The new suggestion is that an employer who does not want to agree the request must put forward an alternative, which could in some cases lead to closer engagement.
- The current eight statutory reasons for refusing a request are quite all-encompassing. However, in many organisations, some or even most of them will have been rendered irrelevant by the experience of mass remote working during the pandemic. The consultation seeks views on replacing these with a narrower range of reasons that could make the right to request more useful in practice for employees, but more difficult to resist for employers. Of course, there has to remain some measure of practicality – many roles simply cannot be performed flexibly.
- Currently, the three month timescale in which an employer must make a decision has positive and negative consequences. It allows the employer to take its time and consider all things carefully; but three months is a long time and, in our experience, the longer the process carries on, the more scope there is for the parties to fall out over it.
- A problem with the current system is that agreed changes become permanent contractual arrangements and cannot easily be undone. The consultation seeks to address this in two ways, by asking whether:
- it would be useful to be able to request and agree temporary changes; and
- an employee should be allowed to make more than one request every 12 months.
A balance is required, however: whilst temporary changes could be useful to both employer and employee, allowing frequent requests would increase the burden for the employer and could simply generate hostility towards the concept of flexibility.
The pandemic has put flexible working high up on the workplace agenda and we will keep you fully updated on the outcome of the consultation.