In its 2019 Manifesto, the Conservative Party expressed its commitment to “encourage flexible working and consult on making flexible working the default unless employers have good reasons not to”. Last year, the Government published a consultation on flexible working, and it has now responded. At the same time a private members' bill on flexible working (the Employment Relations (Flexible Working) Bill) is progressing through Parliament, and it’s now clear this bill will have Government support. There are some differences between the bill and the Government’s response to the consultation, for instance making the right to request flexible working a day one right is not in the private members bill.
Key changes in the Government’s response are:
- The right to request flexible working will become a day one right, with the requirement for 26 weeks’ employment before making a request to be dropped.
- The current list of permissible business reasons for which an employer can refuse a flexible working request will not change.
- Employers should consult with workers as a means of exploring alternative options before turning down a flexible working request (this is consistent with current ACAS guidance on handling flexible working requests).
- Employees will be able to make two flexible working requests in any 12 month period.
- Employers should make a decision on a flexible working request within two months, reducing the “reasonable” period from three months. It will still be possible for employers and employees to agree an extension to this.
- Employees will no longer need to explain what the effect of the change will be on their employer and how this effect could be dealt with. The Government suggests that employers should seek to engage with employees to jointly understand what the impact of the request might be.
As a reminder, other employment issues which are the subject of private members' bills currently making their way through Parliament with Government support are:
1) Introducing a duty on employers to take reasonable steps to prevent sexual harassment of employees and protection from harassment by third parties (Worker Protection (Amendment of Equality Act 2010) Bill);
2) Extending protection from redundancy for parents returning to work after maternity, adoption and shared parental leave such that they will need to be offered any suitable alternative vacancies ahead of other employees (Protection from Redundancy (Pregnancy and Family Leave) Bill);
3) Carers’ leave giving carers an entitlement to one weeks unpaid leave (Carer’s Leave Bill); and
4) A right to paid leave to care for a child receiving neonatal care, in addition to any other family leave entitlements (Neonatal Care (Leave and Pay) Bill).
What does this mean for employers
The Government’s response and the draft bill make it clear that flexible working remains something that an employee has a right to request. Flexible working is not going to become the “default position” for all jobs as initially suggested in the Government’s consultation. One notable omission from the proposed changes is that they do not introduce any additional sanctions for an employer’s breach of this process, which will be welcome news to employers who do wish to turn down flexible working requests and may inadvertently breach the process in doing so.