This month, the government published its response to a recent consultation on flexible working. At present, an employee is entitled to ask their employer to consider their request to work flexibly after they have been continuously employed for 26 weeks.

This might include a request for different start and/or finish times, or working compressed, or even reduced, hours (including job-share options). The employee must lay out the effects of their request on their employer, and suggest how these can be dealt with. The employer is under a duty to consider the request and deal with it in a ‘reasonable manner’.

That usually means that the employer will hold a meeting with the employee to discuss their proposals in more detail, and then properly analyse the advantages and disadvantages of the request.

They should also offer a right of appeal. While there is no “right” to work flexibly, an employer must ensure that the request is properly considered rather than simply dismissed. If a request is refused, an employee cannot make another request (even if it is of a different nature) for at least 12 months.

However, the current position has not been without its critics; in addition, the world of work has evolved significantly in recent years following the enforced working from home during the COVID-19 pandemic and its immediate aftermath.

Many employers have not required their employees to return to the office on a full-time basis, and a significant proportion of those have no intention of doing so in the future. Many employers and employees have come up with innovative ways of working in different ways.

In this very different environment, it was clear that there might be a need to change the current flexible working provisions —hence the government consultation.

The response to the submission suggests that a number of key changes are likely to be made. First, it is proposed that the right to request flexible working can be exercised from the first day of employment, rather than requiring an employee to wait 26 weeks.

They will no longer be required to set out the effect of their request (and any solutions they might have). The employer will then have a duty to consult with the employee and will also have to discuss alternatives to the request (such as whether an alternative form of flexible working to the one requested might be possible).

The employer will have to respond more swiftly —within two months rather than the current three; the employee will also be able to make a second request within twelve-months.

While it is obvious that legislation will be required to implement these changes, at least one Private Member’s bill is currently being proposed that includes some of these changes, most notably the reduction in the time period for responding and the ability to make two requests within a year. These changes may, therefore, come into force more quickly, than the other elements proposed.

Employers and employees who think they may be affected by these changes are well advised to keep abreast of any updates that might be published. Employers who have received such requests in the past will need to fully consider the effects of any changes on their existing processes to ensure that they fully comply with the new duty of consultation.

Whilst it is not proposed that the reasons that an employer can rely on for refusing a request will be reduced or changed, it is clear that the intention behind these proposals is to ensure that where requests can be facilitated, employers do what they can to permit their employees to work more flexibly.

December 2022, Consultation on Making: Flexible Working the Default – Government Response

Safia Tharoo
Barrister, 40 Bedford Row, London