Potential reform of the statutory flexible working regime has been on the agenda for several years but finally, after a consultation first launched in autumn 2021, the UK government has announced its intention to bring about some changes. Legislation will need to be introduced, and the timescale for that is currently unknown, but employers in England, Wales and Scotland will need to be prepared to review and amend their flexible working policies and procedures to ensure they comply with the new requirements.
Contrary to some headlines, the changes do not introduce flexible working as the default position. The reforms fall short of flexibility being the starting point (i.e. only to be deviated from if there was a good reason) and instead retain the current principle that there is a right to request flexible working, but no right to work flexibly. This means that, like now, employers will still be able to turn down requests if there is a good business reason for doing so or if eligibility criteria are not met. The eight business reasons for rejecting requests (the burden of additional costs; detrimental effect on ability to meet customer demand; inability to reorganise work among existing staff; inability to recruit additional staff; detrimental impact on quality; detrimental impact on performance; insufficiency of work during the periods they propose to work; or planned structural changes) will remain the same.
What is changing is the eligibility criteria. Whereas now employees must have 26 weeks’ service to make a statutory flexible working request, this will become a day one right allowing employees to request flexibility from the outset of employment. Employees will also be allowed to make two statutory working requests in a 12-month period, rather than the current limit of one. These changes could significantly increase the number of requests being made, which may be particularly burdensome on employers who have previously been able to avoid or reject requests on eligibility criteria alone.
There will also be greater emphasis on communication when considering requests, with an expectation that employers and employees work together to explore how flexibility can be achieved. To make the process more easily accessible for employees, the need for applicants to explain how their flexibility request might impact the employer and how that impact might be dealt with will be removed. Employers will also be required to discuss the request with employees where they are considering refusing it, and there will be a requirement to explore alternatives. A flexible working meeting was previously recommended by ACAS meaning many employers already incorporate consultation into their flexible working procedures so the impact on this change may be negligible in practice.
The other main change is to the timescales for considering requests. Whereas now employers have three months to deal with a request, this will be shortened to two months. This significant reduction in timescale means some employers will need to find ways to improve speed and efficiency in their processes whilst ensuring the new requirements for consultation are complied with.
Taken together, the measures demonstrate a desire by the government for employers to normalise discussions around, and accommodation of, flexibility. However, with it remaining a right to request (rather than flexibility as the default) and no change to the eight business reasons for turning a request down, it remains to be seen whether the changes simply increase the administrative burden on employers rather than leading to significantly more flexible working being approved.
Ahead of the changes becoming new law, employers will need to update their flexible working policies to reflect the new statutory requirements, and ensure that anyone dealing with flexible working requests are familiar with the new processes and timescales. For employers who actively promote and accommodate flexibility, and do so quickly and regardless of service, the changes will not be particularly problematic. For other businesses where flexibility is often resisted, or hard to accommodate, consideration should also be given to how a potentially higher volume of requests and the shorter timescales for responding will be managed in practice as well as keeping under review where there is scope for flexibility to be achieved.
Finally, it is worth noting that the government recognised that informal, short term and ad hoc requests for flexibility are on the rise. There is no current legislation covering this area (as the statutory flexible working regime discussed here is for a permanent change) but it has indicated an intention to call for evidence in order to consider the issue further.