Employer’s Question: Changes to flexible working requests

05 Oct 2021

Q          When will my staff be able to demand that they be allowed to work from home?

The consultation is at an early stage.  Although reference is made to the fact that 47% of the workforce was working from home in April 2020, the consultation looks at the issue of flexible working more broadly.

Q         I have read that one of the changes is that rather than waiting for six months into employment before making a request, employees will be able to make the request when they start in a new role. Does that mean that they can make the request at the point of application and interview?

In practice a candidate can already do this, and employers should consider such a request fairly – a candidate may have a claim if they are refused  and/or no consideration is given to their request at that point.  It is not clear whether the proposals being made will mean that the employee can only make the request once they have actually started in the role.  

Q         Why not make the candidate make the request at the time of applying for the role.

It might be thought that it would be less disruptive for any request to be made as part of the application process – since at that time the employer can consider other candidates in terms of potential job share or other arrangements.  That would prompt the approach of highlighted at the time of advertisement whether a role can be carried out on a job share/part time/flexible basis.  However, the consultation document makes clear that the Government does not favour this approach.

Q         What is wrong with the current framework?

It isn’t entirely clear from the consultation document what underpins the government thinking here. There are references to the fact that there is a desire to make good on the manifesto pledge of ‘Building Back Better’, and also that there should be ‘genuine two-sided flexibility’. What the consultation does emphasise is that flexible working (which currently most people consider by reference to hours and place of work) should be looked at more broadly and also include part time working, job sharing, compressed hours, flexitime, annualised hours, staggered hours, and phased retirement.

Q         What are the other proposals?

The proposals are framed more around areas where there might be revision to the current scheme:
  • Whether the current eight business reasons for refusing a request remain valid.  This is an interesting suggestion given that the consultation document refers to the statistic that only 9% of requests under the current statutory scheme are refused.  The reason for review appears to be that employees have as a matter of fact worked remotely;
  • Requiring the employer to suggest an alternative if the employee’s request is refused – many employers already do this, mindful of the rigour with which an Employment Tribunal will assess the grounds of a refusal.  The consultation document refers the intention behind the change as encouraging less of a binary approach (presumably by employers);
  • Revising the administrative process.  The two areas are whether employees should continue to be limited to only one request in a 12 month period, and whether three months is too long a period for an employer to respond.  The 12 month ‘window’ only applies to claims under the statutory scheme – employers can be faced by more frequent requests and still have to deal with them. The practical reality faced by many employers is that requests are made outside of the statutory framework, and that refusal of or failure properly to consider those ‘additional’ requests can still give rise to a grievance and/or discrimination claim.   In terms of the response time, three months is perhaps too long given that the legislation has been in place for the best part of 20 years.  Four to six weeks might be sufficient with the proviso that an employer may be allowed extra time if the can show exceptional circumstances; and
  • Permitting requests for a temporary arrangement.  Again, the current legislation permits this, but the consultation document refers to this being largely under-utilised.

Q         When will the final changes be published?

There is no time-scale specified.  The consultation closes on 1 December 2021.  For those wanting to make their views known, it can be accessed here.

If you have an flexible working enquiry or would like to discuss the issues raised in the above Q&A further, please get in touch with your usual employment contact at DMH Stallard or with Rustom Tata by email or by phone on 020 7822 1590.

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