Should Flexible Working Be The Norm?
It’s no secret that the pandemic has changed the way many of us work. Working from home became everyday life for a large percentage of the UK and indeed the world population. Searches for terms such as ‘garden office’ increased by 271% from March 2020 to March 2021.
This consultation, launched by the Department for Business, Energy and Industrial Strategy (BEIS), looks to amend the existing flexible working legislation and proposes that flexible working become the new norm.
The consultation itself does not propose that employees have a ‘right’ to working from home or working flexibly. The BEIS proposal suggests changes be made to existing legislation to recognise the current needs of the workforce and the changes working habits have seen over the past 18 months and even before.
The proposal covers five significant areas of suggested legislative changes.
At the moment, Provisions are set out in the Employment Rights Act 1996, which cover flexible working. These provisions and other regulations made under The Act regulate how long an employee must be employed before making a flexible working request. This request can only be made once in 12 months, and employers need to decide whether flexible working is possible within three months. The employer can disagree with the request, and these refusals must be based on one of eight business reasons. These reasons are explicitly cited in the Employment Rights Act. In particular situations, an employee can appeal this decision by complaining to an employment tribunal.
To support better flexible working, the main changes proposed cover:
1. Right to Request Flexible Working
At present, the Employment Rights Act 1996 states that an employee must have been employed for at least 26 weeks continuously prior to making an application for flexible working.
BEIS would like to propose that the right to request flexible working be available to all employees from day one. This change would help remove the perception that flexible working is a perk or something an employee must earn. This could also help support the 2.2 million people who have changed jobs in the last six months and, therefore, cannot request flexible working.
2. Refusing A Flexible Working Request
At the moment, there are eight specific grounds by which an employer can deny a flexible working request. These are:
- extra costs that will be a burden on the business
- the work cannot be reorganised among other staff
- people cannot be recruited to do the work
- flexible working will negatively affect quality
- flexible working will negatively affect performance
- the business’ ability to meet customer demand will be negatively affected
- there is a lack of work to do during the proposed working times
- the business is planning structural changes
BEIS asks that all invested parties consider whether these eight business reasons should remain valid.
3. Suggestions of alternatives where flexible working is denied
At present, an employer is only required to state that flexible working cannot be accommodated and then declare the business reason relevant to the refusal.
This consultation suggests that an employer is responsible for considering alternative working options rather than solely rejecting a request.
4. Flexible Working Request Administrative Process
An employee can currently make one request every 12 months, and the employer is afforded three months to determine whether the request can be agreed.
BEIS asks contributors to consider the statutory timeframes and their appropriateness concerning how frequently an employee can make, and how long an employer can take to respond to, a flexible working request.
The government has said it does not currently require the publication of flexible working policies; however, this, along with the publication of family-related leave and pay, will be reviewed in 2022.
It’s apparent that following a time of uncertainty and considerable changes in hundreds of companies’ working patterns, the government is recognising the need for change. A review of the current flexible working legislation might just be the start, but you can have your say and be part of the future here.
