UK government proposes making flexible working the default

The Department for Business, Energy and Industrial Strategy (BEIS) launched the consultation on amending existing flexible working legislation in the wake of the coronavirus pandemic, which has shifted many employees to a flexible working pattern.

Although the consultation does not propose a ‘right’ to flexible working, it said it wanted to make flexible working the default with a right for an employee to request flexible working patterns from day one of a new job.

The consultation sets out five proposals, the first being the day one right to flexible working. It considers whether the eight business reasons outlined in the Employment Rights Act for refusing a request for flexible working still remain valid, and proposes requiring employers to suggest alternatives.

BEIS is also consulting on changing the administrative process required for flexible working, by allowing more than one request every 12 months and reviewing the three-month response period currently mandated; and exploring ways to encourage time-limited requests, which are allowed in the current framework but under-utilised.

Employment law expert Anne Sammon of Pinsent Masons, the law firm behind Out-Law, said: “At a time where our working practices have been transformed, this plan keeps pace with those changes. In practice, many of organisations already provide for this in their policies, meaning that for some there will be very limited impact, if any at all.”

Sammon said there would be more impact on employers if consultation responses indicated a need to increase the number of flexible working requests that can be made each year, as the current limit on requests to one per year with a three-month timescale to consider requests was aimed at ensuring human resources departments were not swamped.

“If there is to be any change to this, it would be useful for the legislation, or any guidance, to address how employers can deal with identical requests submitted within a short space of time,” Sammon said.

Sammon said response timescales also needed to remain practical and clear guidance would be needed on the exact legal requirements around suggesting alternatives, as many employers already engaged collaboratively with employees.

The government said it was not currently requiring the mandatory publication of flexible working policies, as organisations needed longer to update and develop their individual positions. However this, along with mandating the publication of family-related leave and pay, will be considered as part of a review of the impact of the Gender Pay Gap Reporting Regulations in 2022.

Separately, the government has said it will introduce a right for unpaid carers to take up to one week – five working days – of unpaid leave per year, in the wake of a consultation carried out in 2020. As with flexible working, the proposal is for a day-one right based on the existing definition in employment law of a “dependant” and will depend upon the person being cared for having a long-term care need.

Although unpaid, employers will have discretion to enhance the length of time off and offer pay.

Many employers have already introduced such an entitlement although the detail of any legislation will need to be complied with.