397: Flexible working reforms: what’s next?

On 5 December 2022, the Government published its response to the September 2021 consultation on flexible working. This sets out the Government’s proposals for reforming flexible working rules, with the overall policy objective of normalising flexible working. Underpinning these reforms is the principle that there is no one-size-fits-all approach to flexible working, so the system must be based on finding mutually agreeable arrangements through constructive and open-minded conversations. Both the Conservative and Labour parties pledged to expand flexible working in their 2019 election manifestos and both appear keen to demonstrate their commitment before the next General Election.

The consultation response stresses that employees will still only have a right to request flexible working, not an automatic entitlement to work flexibly. However, the right to request flexible working will apply from day one rather than after 26 weeks’ service. This change will be introduced in secondary legislation when Parliamentary time allows.

The remaining changes proposed in the consultation response will be implemented through the Employment Relations (Flexible Working) Bill, a Government-backed Private Member’s Bill. This Bill is entering Report Stage in the House of Commons and is likely to become law, possibly by Autumn this year, presumably at the same time as the introduction of the day one right to request flexible working. The Bill contains the following key provisions:

• employees will be permitted to make two requests in any 12 month period instead of one;
• employers will have to respond to a request within two months, rather than three;
• the requirement for employees to specify how their employer could deal with the effects of their request to work flexibly will be removed. Employers will be encouraged to engage with employees to work out the impact of their request together; and
• employers will be required to consult with employees to explore the available options before rejecting a flexible working request.

94% of consultation respondents supported this final proposal, which is consistent with the Acas Code of Practice on handling flexible working requests. Although there was also a majority in favour of reducing the number of business reasons which can be used to justify rejecting a request, there was no clear consensus on a way forward and the Government has confirmed that there will be no change to the current list of eight reasons.

The consultation response also confirms that the Government will develop clearer guidance to improve awareness and understanding of how the current legislation can be used to make temporary requests for flexible working. A call for evidence will be issued in due course to better understand how employers apply more informal and ad hoc flexible working practices.

Although we do not yet have a precise timeframe for the changes to the current flexible working regime, employers are likely to receive more requests in the near future and will be required to respond to them more quickly. Therefore, it is worth considering whether amendments may need to be made to current flexible working policies and practices, managerial training, and staff communications.

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