Education briefing - Government announces changes to flexible working

• United Kingdom

• Education - Briefings

06-12-2022

On 5 December 2022, the Government published the long awaited response to its consultation on making flexible working the default, which had closed on 1 December 2021.

 In summary, the Government has announced that it will:

• remove the 26-week qualifying period before employees can request flexible working, making it a day-one right

• require employers to consult with the employee, to review options, before rejecting a flexible working request

• allow employees to make two (not one) flexible working requests in any twelve month period

• require employers to respond to requests within two (not three) months

• remove the requirement for employees to set out how the effects of their flexible working request might be dealt with by their employer

It should be noted that the changes do not provide a right to work flexibly - it will remain a right to request (which an employer may in appropriate circumstances, as now, refuse) and in relation to this the Government has confirmed that it will not make any changes to the current list of eight business reasons for rejecting flexible working requests.

As legislation will be needed to introduce these changes, the Government has said it will support the Private Member’s Bill (the Employment Relations (Flexible Working) Bill) introduced by Yasmin Qureshi MP on 15 June 2022, which passed its Second Reading in the House of Commons on 28 October 2022 and will move to Committee Stage on 7 December 2022. It is therefore likely to be some months before the changes will come into force.

These changes will apply to institutions in England, Wales and Scotland. In advance of them coming into force institutions are advised to review their flexible working policies and procedures and identify where any amends will be needed to comply with the changes and to ensure that managers are aware of the reduced response time and the duty to consult before any request is refused. Making the right to request a day-one right may also require changes to recruitment procedures. For example, to prepare those involved in selection processes to respond appropriately to applicants or newly recruited employees seeking to change when, where or how they work.

In addition to the legislative changes, the Government has said it will:

• develop enhanced guidance to raise awareness and understanding of how to make and administer temporary requests for flexible working; and

• launch a call for evidence to better understand how informal or ad hoc flexible working works in practice.

Response to consultation

There were 1,611 responses to the consultation. The majority of these (83%) were from individuals, with 7% from employers, 2% from trade unions or staff associations, 2% from business representatives and the remaining 6% from respondents who defined themselves in the ‘other’ category (charities, campaign groups, academics, think tanks, advisory groups and professional bodies).

The consultation had set out proposals to amend the right to request flexible working covering:

• making the right to request flexible working a day one right;

• whether the eight business reasons for refusing a request all remain valid;

• requiring the employer to consider alternatives if the initial request is unworkable;

• the administrative process underpinning the right to request flexible working;

• requesting a temporary arrangement; and

• a future call for evidence on ad hoc and informal flexible working.

The outcome of each of these are below.

Making the right to request flexible working a day one right

There was clear support for removing the 26-week qualifying period, with 91% of all respondents being in favour. Indeed 69% of the employers responding to the consultation said that they already accept requests for flexible working arrangements from day one.

A number of respondents were concerned that making the right to request flexible working a day one right would be unnecessarily disruptive to their existing approach to the workplace. Interestingly, this was highlighted in sectors such as education (with the example given of teachers being required to provide specific services at set times) and hospitality. In such scenarios, it was argued that giving employees the opportunity to submit a request for a different arrangement within six months of their start date could create operational and logistical challenges.

Perhaps not surprisingly, however, the Government believes that making the right to request flexible working apply from the first day of employment is a proportionate step to take and this change, which will extend the right to request flexible working to an estimated additional 2.2 million people, will be introduced.

Whether the eight business reasons for refusing a request all remain valid

The consultation asked, in the light of recent experiences including the Covid-19 pandemic, whether the current eight business reasons for refusing a flexible working request remain valid.

62% of all respondents thought they did not, supporting a reduction in the list of reasons, mainly on the basis that the list of business reasons was too broad, and the current framework made it too easy for employers to refuse flexible working requests. However, the views of individuals and businesses were very different with 63% of employers and business representatives answering that the current reasons do remain valid, and some arguing that they should be increased.

The Government noted that:

• while an overall majority of respondents supported a reduction in the list of business grounds for rejecting a flexible working request, no clear picture emerged of an obvious way forward;

• there was a clear difference between the views of individuals and employers; and

• there is the need for a conversation between the employer and employee about the reason(s) applicable in any specific case and therefore how flexible working might sensibly and practically be available to an employee, if at all.

For these reasons, coupled with the strong arguments for maintaining the current position put forward in some consultation responses, the Government concluded that it will retain the current list of business reasons and not make any changes.

Requiring the employer to consider alternatives if the initial request is unworkable

The consultation asked whether, in order to encourage wider consideration of what might be workable, employers should be required to show that they have considered alternatives when rejecting a statutory flexible working request – perhaps by introducing a requirement on employers to set out a single alternative flexible working arrangement and the business ground for rejecting it.

94% of respondents supported the basic principle. Amongst the reasons given were the importance of transparency in decision-making; such an approach would make employers more likely to fully engage with and consider the request; this would help to influence organisational cultures more in favour of flexible working practices; and this would benefit the employment relationship by helping both sides to find solutions to flexibility needs.

However, there was a very mixed response to the question as to whether to introduce a requirement to show that a single alternative had been considered. There were concerns (particularly from employers) that this would place a burden on business; that such an approach may limit the scope of conversations and do little for those individuals who have a specific flexibility requirement; that alternative options should not be proposed by the employer without consultation with the employee; and that there will be circumstances where no reasonable alternative is available.

The outcome is that the Government will take forward this change so that employers are required to consult with their employee, as a means of exploring the available options, before rejecting their flexible working request. It remains to be seen what form this will take, although the ACAS guidance on responding to a flexible working request advises employers to consider other options if the request is not possible as trying to find a compromise can help keep good working relationships and keep staff. The guidance recommends that the employer should talk to the employee and explain why they cannot make the changes they initially requested; listen to their reasons for requesting the change; suggest any other possible options and ask if they have any ideas for other options.

The administrative process underpinning the right to request flexible working

Currently employees can make one statutory flexible working request in a 12-month period, and employers must respond within three months. The consultation invited views on allowing a greater number of requests and reducing the time period within which employers must respond.

80% of all respondents supported reform to the number of statutory requests permitted in a 12-month period and 75% in relation to how quickly an employer must respond to a flexible working request. Although there were some concerns around potential administrative burdens, a small majority of employers and business representatives did so too – with the figures being 56% and 54% respectively.

In relation to the number of requests permitted per year, 49% of all respondents thought that there should be no limit, with 17% saying two requests and 16% three requests. Not surprisingly perhaps of employers and business representatives only 18% said there should be no limit, with 20% saying two requests and 16% three requests.

For the response period, of all respondents the most popular option (44%) was that employers should have to respond to requests within a period of between two weeks and one month. The second most popular option (26%) was that they should be required to respond within a period of less than two weeks, with 13% saying one to two months. Again the position was markedly different for employers and business representatives with 20% saying between two weeks and one month, only 6% less than two weeks and 21% between one and two months.

The Government has concluded that employees should be able to make more than one request within a 12-month period, and that employers should respond to requests more swiftly than the current three months, and that the consultation and subsequent discussions with stakeholders have pointed to a “general consensus” around permitting two requests in any 12-month period and shortening the response period to two-months.

Requesting a temporary arrangement

The consultation asked whether people were aware that it is possible to make a time-limited flexible working request under the current legislative framework. This was asked because the Government believes that the ability to do this is under-utilised.

Among all respondents, 63% said that they were not aware that it is possible to make such a request to work flexibly, although 77% of employers and business representatives said they were.

When asked what would encourage employees to make time-limited requests to work flexibly, responses focused on awareness-raising activities and the provision of better guidance for workers and employers on how this works in practice, as well as how to support flexible working cultures, and the Government has said it will take this forward.

A future call for evidence on ad hoc and informal flexible working

In the consultation the Government announced that as part of a separate exercise, it would launch a call for evidence looking at the sorts of ‘extra’ flexibility people may need to help them live their lives in the best way they can – both at work and at home, and that this call for evidence would explore the need for ‘ad hoc’ and informal flexibility and how this can best be supported. Respondents were therefore asked to share their suggestions for the issues that the call for evidence might consider.

Suggestions included:

• how individuals ask for flexibility at short notice – whether it is informal, evidence-based or through a leave entitlement;

• how individuals experience these conversations – whether they feel comfortable, able to disclose personal information and how that is received;

• what the individual needs are and why flexibility is needed – whether the need is medical, shorter/longer term or in response to planned/unplanned events;

• how employers respond to requests for flexibility at short notice – whether policies are in place, what employers understand their responsibilities to be and the extent to which informal flexibility is part of the culture;

• whether the degree of informal flexibility available to workers differs between different workers in the labour market; and

• whether employers treat requests for informal flexibility differently depending on the need.

The Government has said that it wants to understand more about how these less-formalised types of flexibility work in practice and drawing on the responses received through this consultation and the expertise of the Flexible Working Taskforce, it will issue a call for evidence on the subject in due course.