During the last general election, the U.K. government included a manifesto pledge to make flexible work the default position unless employers have a good reason not to make it so. In 2019, the government launched the Flexible Working Taskforce—a partnership across government departments, business groups, trade unions and charities to encourage employers to consider advertising jobs at all levels and pay grades as flexible. But things had gone quiet and this commitment wasn’t included in the most recent Queen’s Speech.
However, the government has now launched a consultation which sets out a number of proposals. These are built around the principle that working arrangements are best decided through dialogue between the parties. The government intends to provide, what it calls an “enabling framework” within which these conversations can take place rather than setting out specific legal requirements.
The government will not change the law to allow employees a right to have flexible work. Employees will still have to initiate the discussion, as they do now, and the focus of the consultation is to support employees to start these conversations and help employers to respond to them.
In other words, the government has no intention of making flexible work the default position.
It has set out five specific proposals:
1. Making the right to request flexible work a ‘day one’ right
Currently employees can make a request to work flexibly under the statutory procedure only if they’ve worked for their employer for at least 26 weeks. The government believes that making flexible work available at the outset of the employment relationship will help encourage employers to consider flexible working options early in job design/recruitment process and give employees more confidence to make a request. It is asking for views about whether the qualifying period can be removed and what benefits this might deliver.
However, it does not intend to impose a legal duty on employers to say in job advertisements whether they are open to flexible work.
2. Ensuring that the eight business grounds for turning down a request remain valid
Employers who turn down a request to work flexibly under the statutory scheme must be able to point to one or more of the business grounds set out in the legislation. The government doesn’t believe that these present a disproportionate barrier to flexible working (they don’t) and doesn’t think that they need to be changed. However, it wants to find out if the existing business reasons are still appropriate.
3. Requiring the employer to consider alternatives
Currently, an employer can turn down a request if it has relevant business reason. It doesn’t have to consider alternatives to the one proposed, although, in practice, many employers do. The government wants to explore whether it’s practical to ask employers to set out, when rejecting a request, what alternatives it’s considered (and, if viable, presumably offered to the employee). It believes that asking employers to consider alternatives will help influence organizational norms.
4. Reviewing the administrative process underpinning the process
Currently, an employee can make only one statutory request every 12 months and the employer has three months to consider it. The government is considering removing this limitation so that people can make more than one request each year to reflect changes to their personal situations.
It is also considering changing the three-month time limit employers have to respond (which can be extended by agreement) to a shorter period. One of the options is for the process to be concluded in less than two weeks! Anybody who has been involved in this process will know that such a short timescale is completely unrealistic unless the parties are in agreement from the outset.
5. Requesting a temporary arrangement
Currently, if the employer agrees to an employee’s flexible working request, it will be a permanent change to the employee’s terms and conditions of employment unless the parties agree otherwise. The government believes that the ability to request a temporary arrangement is under-utilized and it wants to know if businesses are aware that they can agree to short-term arrangements.
In addition to these proposals, the Flexible Working Taskforce will review what has been learned during the pandemic and develop advice to help support new ways of working. It will start by looking at the location where people work, including hybrid working, and will consider practical issues to help employers support those people who want to work flexibly.
The government also wants employers to develop flexible working policies. The July 2019 consultation, “Good Work Plan: Proposals to Support Families” contained proposals to introduce a new requirement for large employers (250+ employees) to publish their flexible working policies. The government has rejected that idea in favor of encouraging employers to publish their policies.
The government will also launch a separate call for evidence to consider the extra flexibility that people may need including the need for ad hoc and informal flexibility.
Responses must be submitted by 11.45 p.m. on Wednesday, Dec. 1.
Joanne Moseley is an attorney with Irwin Mitchell LLP in Birmingham, England, U.K. © 2021 Irwin Mitchell LLP. All rights reserved. Reposted with permission of Lexology.