Tegan Osborne-Brown
Posted on 5 Oct 2021

Flexible Working: Government Consultation into making Flexible Working a Day One Right

What is flexible working in business?

Flexible working was formally introduced by the Employment Rights Act 1996 and The Flexible Working Regulations 2014 (the Regulations). The legislation enables employees with a minimum of six months' service to request a change in contractual terms and conditions of employment once every 12 months. Such a change can encompass when where and how employees work. It is a concept most, if not all, of us have now encountered throughout the past two years as a result of the Covid-19 pandemic. As such, calls for greater flexible working in business are louder than ever.

How does flexible working affect businesses?

Historically, flexible working has tended to be frowned upon by businesses, particularly those in certain sectors, in favour of presenteeism. However, the impact of Covid-19 has highlighted to employers that, very often, being physically present is not a precursor to productivity. The Chartered Institute of Personnel and Development (CIPD) has found that giving employees the opportunity to better balance work and personal commitments through flexible working results in higher motivation and loyalty to the employing organisation.

Likewise, the Government has acknowledged that a flexible approach to working from employers can lead to a more diverse workforce and improve financial returns.

Can flexible working be refused?

The process for requesting flexible working is quite formulaic and prescriptive. Under the legislation, an employer can refuse a flexible working request on one (or more) of eight specified grounds:

  • There are planned structural changes;
  • The employer will have a burden of additional costs;
  • quality or standards will suffer;
  • additional members of staff cannot be recruited;
  • performance will suffer;
  • the work cannot be reorganised among existing staff;
  • the employer will struggle to meet customer demand;
  • there will be a lack of work during the periods the employee proposes to work.

Employers must sure that any reason for refusal has been sufficiently considered, is not discriminatory and that it is explained to the requesting employee, including notice of the appeals procedure. The decision must be communicated within three months, unless otherwise agreed with the employee.

The refusal of flexible working requests made by employees who have protected characteristics, such as a disability, is particularly tricky. Even where one or more of the eight reasons above applies, the employer will need to ensure that its actions can be classified as a 'proportionate means of achieving a legitimate aim', otherwise there is the risk of indirect discrimination.

Government Consultation

Earlier this year, the CIPD launched a campaign to make flexible working a day one right for employees. With an estimated one third of businesses already implementing flexible working from the first day of employment, some take the view that current legislation is behind the curve.

On 23 September 2021, the Department for Business, Energy and Industrial Strategy responded to these calls and launched a consultation into a review of the Regulations. The consultation aims to review the current employee entitlement and consider any adjustments.  In particular, it will consider whether:

  • Employees should be able to make flexible working requests more than once in any 12 month period, as is currently the position;
  • The eight circumstances for refusal remain valid and whether there should be new requirement for employers to set out that alternative arrangements have been considered.

Employers and employees alike should monitor the outcome of the consultation which closes on 1 December 2021, as it is likely that some legislative changes will be effected as a result.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Tegan Osborne-Brown or Rachael Lloyd to discuss any issues you are facing.