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The Right to Request Flexible working

The right to request flexible working may have been around for some time but over the past 18 months it has morphed from an option that people were vaguely aware of to a tool that many have come to expect. Since 30 June 2014, employees with at least 26 weeks’ continuous service have had the right to request a change to their working pattern.  This can include a request to change their hours of work, the number of hours worked and their place of work. Now, it could become a right that employees can request from their first day of employment following the publication in September of a consultation into flexible working rights.

How has access to flexible working changed?

Initially, flexible working was an option that could be requested by parents and other carers in certain circumstances. As we explained in our article The Great Return, it is necessary for employers to deal with the request reasonably and to notify the employee of the outcome within a 3 month period. If the decision is not to accept then employers should provide one or more of eight available reasons for not doing so.

The proposed changes would allow flexible working requests to be made at the start of employment with employers being required to offer alternatives if the flexible working arrangement being requested is not suitable. It does seem that employers will still be able to reject a request on business grounds, but the emphasis is shifting towards “making flexible working the default”, which, incidentally, is the title of the consultation document published by the Department for Business, Energy and Industrial Strategy (BEIS) on 23rd September 2021.

What else needs to change?

If the proposals are given the go-ahead, employers are likely to face an increasing number of requests from staff. This reason alone is enough to spur businesses into action sooner rather than later. The board would do well to consider generally what business grounds would warrant refusal of a request and how operations can be adapted to accommodate greater flexibility. The pandemic has of course already generated much of this type of discussion, and we have seen the advent of so-called ‘hybrid-working’, although much of this will not have been formalised into long term company policy.

The Department for Business Enterprise and Industrial Strategy (BEIS) is also encouraging employers to see this as an opportunity to ensure there is an inclusive culture throughout their organisation. In the future, unreasonable refusals of flexible working requests could be subject to discrimination claims far more readily than what is the case currently.

Benefits to business

The pandemic has demonstrated how businesses that can adapt to flexible working are often more resilient during challenging times. However, Covid-19 also made many people rethink their lifestyles and this is driving an appetite for greater flexibility. Flexible working can give rise to a variety of different working patterns.  It includes part-time working, job sharing, home-working, compressed working hours, term-time working arrangements, sabbaticals and career breaks. Workers in all sorts of fields have experienced the benefits of having the ability to work from home and flexible hours and they want to maintain that work life balance. Having an open-minded approach to flexible working in all its guises can supercharge the appeal of an employer and help a company attract talent in a competitive market.