New proposals to change flexible working law

Working from home (WFH) was something that some employers had been resistant to in the past, but circumstances forced them into accepting during the pandemic. Views seem to be mixed as to what extent WFH is here to stay in future, but there is no doubt that it is a very hot topic at the moment.

You may have seen in the news this week that the Government is proposing to make some changes to the rules on flexible working to “make flexible working the default.” These proposals would apply to all flexible working requests, not only those for WFH, but many people are predicting that an increase in homeworking is one of the ways in which the new rules would have an impact if they are introduced. We take a look at what information there is about the proposals so far, and how significant a change it would make if the new proposals are implemented.

A reminder of the current law

At the moment, all employees have the right to request flexible working once they have 26 weeks’ service. An employee’s flexible working request can ask for:

• A change to the hours of work (usually a reduction); and/or
• A change to the times that those hours are worked (e.g. an early start or late finish); and/or
• A change in the location of work (usually this would be to work from home, although it could also potentially be to work from one of the employer’s other sites).

The employer must deal with the request ‘reasonably’ and has three months in which to respond. There are eight potential reasons an employer can rely upon to refuse a request, which are as follows:

• 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 the employee proposes to work
• Planned structural changes

If an employer wants to refuse a request, it is usually relatively easy for them to be able to show that one of the above reasons applies. However, it is also important to remember that employees may have other legal protection, such as against discrimination, which may mean that the reasons given need to have stronger justification.

An employee can only make one flexible working request in any 12 month period. They are protected against detriment or dismissal for having made a request.

What are the proposed changes?

The proposals announced this week would give all employees the right to request flexible working from day one of their employment, rather than after six months. They would also reduce the time period for the employer’s response, although it isn’t clear yet what sort of reduction.

The Government is also querying whether the eight reasons for refusal are still valid, as well as looking at the potential for requiring employers to give more explanation for their decision if they are refusing a request. As there will be a consultation process, it may be that other changes are suggested during the process which are then picked up.

What is the impact likely to be if these changes are introduced?

It seems that these proposals are part of an effort to change workplace culture and make it more acceptable for flexible working to be mentioned at an early stage, rather than anything that will force employers to agree to flexible working.
I am not convinced that the changes currently being discussed would have a huge impact. I suspect that as most employees are on their probationary period during the first few months of their employment, they may feel reticent about making a request until they have established themselves in their role, and an employer may not feel inclined to grant it at such an early stage. However, as mentioned above, if an employee were to make a request, then they are protected against detriment or dismissal because of it.

A lot of this may also come down to the parties’ bargaining position. When candidates for a role are scarce, employees may have to be prepared to offer more flexibility in order to attract applicants, and candidates may be more prepared to ask for flexibility as part of the job offer process, i.e. even before day one of their employment. Employers who aren’t prepared to consider WFH or other kinds of flexibility may find themselves being left behind.

Unions have called for the changes to go even further, i.e. to be a right to be given flexible working, rather than just a right to request it. This might sound good to employees in theory, but it is difficult to see how it could ever be practical, given the huge range of different situations that are found in workplaces. We will of course keep you updated on any developments on this interesting topic.