Charlotte McBride is an Associate Solicitor at specialist employment law firm' Collingwood Legal. Charlotte McBride considers the Government's proposals on reforming the current legislation on an employee's ability to make flexible working requests.
The impact of the COVID-19 pandemic and the changes this has brought to working culture in the UK has reformed the way employees and employers think about flexible working. According to statistics from the Office of National Statistics (ONS)’ in April 2020′ 46.6% of people in employment worked from home’ compared to 11% in the corresponding period in 2018. The ONS subsequently reported in June 2021 that 85% of adults working from home wanted to adopt a ‘hybrid’ approach going forward’ with a mix of both home and office working. Therefore’ greater flexibility and a shift from traditional practices is clearly in high demand making a change in the current flexible working legislation a hot topic.
What are the current rules on flexible working requests?
Under the current legal framework employees (and not workers or other individuals) can make a statutory flexible working request and only once they have completed at least 26 weeks’ continuous service with their employer. The employer is then obligated to respond within a reasonable time frame and the entire process (including any appeal) should be completed within three months of receiving the request. If the employer refuses the request’ the refusal must be based on one or more of the 8 business reasons detailed in the legislation. An employee is only permitted to make a request once in any 12-month period.
Why might this change?
For many’ the shift to flexible working arrangements during the pandemic was a welcome adjustment’ allowing individuals greater time and freedom to better manage their work and personal commitments. The Government’s ambition is now to adopt a “world class approach to flexible working” in order to “build back better” following the challenges brought by the pandemic. The Government wants to focus on all forms of flexibility and move away from the default 9-to-5 office-based job. The Government hopes that the proposals outlined in its consultation document will bring greater benefits for both employees and employers. What are the Government’s proposals?
The Government published its consultation document on 23 September 2021. The key proposals for reform include:
1. Making the Right to Request available from ‘day one’ of employment.
2. To consider whether the current eight business reasons for refusing the request will continue to be valid.
3. Requiring the employer to suggest alternatives when they refuse a request (where possible).
4. Make changes to the current administrative process of flexible working requests i.e. amend the timeframe in which employers are required to respond and to potentially remove the restriction on one request every 12 months.
5. Greater emphasis on allowing temporary adjustment requests.
The consultation period on these proposals will close on 1 December 2021. It will be interesting to see the outcome of this process’ and how our traditional model of working culture may be permanently transformed as a result.
Comment
Not only has the pandemic encouraged a greater shift to flexible working arrangements’ but recent Employment Tribunal decisions have demonstrated the need for employers to respond appropriately to flexible working requests and genuinely consider these before they dismiss them. As publicised in the news’ the Employment Tribunal in the recent case of Mrs A Thompson v Scrancrown Ltd T/a Manors found that Mrs Thompson’ a Sales Manager at a Londonbased estate agency’ was indirectly discriminated against on the grounds of sex when Manors refused her flexible working request’ including a request to finish an hour earlier every day to pick her child up from nursery before it closed. The case highlighted that an employer’s justification for refusing a request should not outweigh any potential discriminatory impact on an employee as was regrettably the case here. It is situations like this case that the Government’s proposals aim to support’ allowing employees greater opportunity to better engage and have a two-sided conversation with their employer about flexible working practices that can suit both parties. Collingwood Legal is a specialist employment law firm and we provide expert advice to organisations on all areas of employment law’ including assisting HR and business-owners on dealing with flexible working requests and drafting flexible working policies or delivering bespoke training to staff.
