Flexible working: Government consultation and amendment to Agenda for Change

The facts

The Government has published a consultation document, “Making flexible working the default”, proposing various reforms to the right for employees to request flexible working, taking into account changes in working practices brought about, and lessons learnt, during the COVID-19 pandemic.

The proposals do not introduce an automatic right for employees to work flexibly.  Instead, the proposals include a number of measures to broaden the scope of the right to request flexible working, while retaining the current system. The main change would be making the right a "day one" right, removing the requirement for 26 weeks' qualifying service. The consultation also considers:

• Making changes, if necessary, to the eight business reasons for refusing a request to work flexibly – are they still valid?
• Requiring the employer to suggest alternatives to the arrangement suggested by the employee.
• Changing the administrative process underpinning the right to request flexible working. In particular, the Government wants to explore whether employees should be allowed to make more than one statutory request each year.
• Raising awareness of the existing right of employees to request a temporary flexible working arrangement.

The Government has decided not to proceed, at this stage, with the proposal, put forward in an earlier consultation, to introduce a requirement for large employers to publish their flexible working policies.

The consultation will have limited impact for NHS employees on Agenda for Change terms.  As part of the NHS People Plan, the NHS People Promise sets out a series of commitments, one of which is “we work flexibly”.  Section 33 Agenda for Change (AfC) has been amended accordingly, with effect from 13 September 2021 in England.  The new Section 33 of the NHS TCS handbook provides for:

• a contractual right to request flexible working from day one of employment (noting the wider consultation on extending this right to all, regardless of sector).
• no limit on the number of requests and the right to make them regardless of the reason.
• new requirements for centralised oversight of processes to ensure greater consistency of access to flexible working including an escalation stage for circumstances where a line manager is not initially able to agree a request.
• expectation that employers will promote flexibility options at the point of recruitment and through regular staff engagement through one-to-ones, health and well-being conversations, appraisals and team discussions.

What does this mean for employers

The Government is not suggesting that flexible working will be an automatic right  but, if implemented, these changes may  shift the working culture in the UK towards an increased acceptance of flexible working.  In reality many employers will be transforming their working practices in light of the pandemic so it may be that this proposed change in law has limited impact, however, we will need to await the detail following the consultation.

For those NHS employees on AfC terms, Section 33.10 AfC states that employers and trade unions should work through local partnership arrangements to develop and communicate options for flexible working, including, but not limited to, a range of flexible working arrangements including homeworking for some or all of the working pattern.

The consultation will remain open until 1 December 2021.  Employers who wish to contribute their views can do so online or by email to labourmarketparticipation@beis.gov.uk.

Making flexible working the default (publishing.service.gov.uk)