Flexible working: The Government response to the consultation and what to expect moving forward

The government recently published its response to the consultation on updating laws regarding flexible working. This response arrives against the backdrop of increased flexibility in working practices following the pandemic, calls from industry bodies for reform, and a novel pilot of a standard "4 day work week" taking place in a number of businesses across the UK.

The government intends to introduce a number of changes to the statutory scheme for requesting flexible working to make the scheme more "employee friendly". This includes the following:

• The right to request flexible working will become a "day one" right. Currently, the requirement is that employees must have 26 weeks' continuous service to make a formal request.
• There will be a requirement for employers to consult with the employees, as a means of exploring available options, before rejecting their flexible working request.
• Permitting two statutory requests to be made in any 12-month period, rather than only one request.
• Employers will need to respond to requests within two months, rather than three months.
• Removing the requirement for employees to explain what effect, if any, the change applied for would have on the employer and how that effect might be dealt with. This will simplify the procedure for making a request.

The government will also develop guidance to increase understanding of how to make and administer temporary flexible working requests and issue a call for evidence on how informal flexibility works in practice. Importantly, there will be no change to the eight grounds upon which the employer can refuse a flexible working request.  

The timing of these changes remains uncertain, as the response does not contain draft legislation or set out a timetable for the proposed changes. The government has stated that it supports an existing Private Members' Bill, which passed its second reading on 28 October 2022 and included some of the proposed changes to the regime. It may therefore be the case that some of these changes will be implemented in short order.

Fieldfisher Comment

The government's response provides welcome clarity on the status of flexible working requests, given potential reforms were floated some time ago and prior to the cultural shift in flexible working triggered by the pandemic.

Since the pandemic, there has been an expectation of flexibility, with significant numbers of employees still working from home and "Gen Z" entering the workforce with flexibility as the norm. As a result, flexible work practices have become a key element of many employers' strategy for attracting and retaining talent. This has tended to be an informal measure, rather than by way of employees making statutory flexible working requests. However, we are now seeing employers implement flexible practices permanently. In Belgium, employees now have the right to request a compressed working week and Irish employees may imminently see enhancements to their flexible working rights. More recently, the notion of the four-day work week, with no loss of pay, was piloted globally with great success demonstrating that the concept of "flexible working" is continuing to evolve. In this context, the changes to the scheme are not particularly radical. However, different industries and different employers take different stances in relation to flexible working so it is not surprising that opinions on the reforms have been mixed.

Much commentary around the proposed changes to the scheme has been positive, noting that the changes will assist in normalising conversations about flexibility from the outset, which will benefit employees in relation to wellbeing and work-life balance, and will help employers to boost productivity, agility, and attraction and retention of a more diverse workforce.

Some employers already view the current process as being unnecessarily bureaucratic and administratively burdensome. The new obligation to consult and consider available options places a further duty on employers to demonstrate that they have acted reasonably when considering requests.

Some have raised concerns with the changes, noting that the provision for a "day one right" to request flexible working is an example of how the government interferes with the running of companies. Sir James Dyson, founder and chief engineer of Dyson, has queried why companies will invest in the UK if they have minimum control on where (and how) their UK staff work.

Opinions on flexible working are often divided, however employers should be mindful that these new rights will provide employees with increased confidence when making such requests.  

Employers will also need to consider what their stance is on further flexibility outside of the statutory scheme. The consultation response demonstrates increased fervour to support flexible working, so it is important to factor this in when considering attraction and retention. The key principle is that there is no "one-size-fits-all" approach and the system must allow for employers and employees to have constructive conversations to ensure that arrangements work for everyone involved.

While no clear timeframes have been provided for when these requirements will become legally binding, the consultation response shows a definitive shift of mind set regarding flexible working and employers should consider updating their flexible working policies and procedures, and ensuring that HR teams are suitably prepared to deal with such requests.