The Department for Business, Energy & Industrial Strategy has published a consultation called ‘Making Flexible Working the Default’ with a closing date for submissions of 1st December 2021.
The consultation seeks to build on existing legislation and the current government’s 2019 manifesto “to encourage flexible working and consult on making it a default unless employers have good reason not to”. It identifies that flexibility in working patterns is something which all employees would benefit from, not just a limited sub-set; at present the vast majority of requests are made by women with young families.
The consultation aims to build on the July 2019 “Good Work Plan” which proposed to promote greater transparency about flexible working and family-related leave and pay policies, and suggested a requirement for employers to include whether the role was suitable for flexible working in the actual job advert.
The impact of Covid-19 is undoubtedly a driving force for the change, as employees and employers have come to realise that the old, one-size fits all, working hours arrangements are not necessarily the right way forward. A large proportion of employers have already indicated that they intend to offer flexitime, staggered hours and compressed hours.
The consultation identifies that the ability to work flexibly does not just benefit employees but also employers by rewarding them with better employee performance and thus higher financial returns. Simply put, flexibility has led to a more content and motivated workforce who perform better.
One area of concern which has been identified in the consultation is the inequality which has been shown up in the workforce being able to work flexible hours, with a marked difference between London and the South-East of England and the remainder of the country. This clearly reflects the different types of industries found in the different regions of the U.K.
Most office-based jobs can be performed from any computer, in any location in the world, whilst in industries such as manufacturing, hospitality, retails and warehousing jobs require employees to perform their jobs in situ. These requirements have and will continue to create a marked differentiation in the flexibility which can be built into the working patterns of different business sectors.
The proposals in the consultation invite comment on the possibility of making flexible working the default unless employers have good reasons not to deviate from a 9-to-5 pattern of working hours.
A summary of the five key proposals of the consultation is as follows:
making the right to request flexible working a “day one” right
whether the eight business reasons for refusing the request all remain valid
requiring the employer to suggest alternatives
the administrative process underpinning the Right to Request Flexible Working; and
requesting a temporary arrangement.
One of the options being mooted is to alter or reduce the above criteria to make it easier for employees to make and succeed with such requests.
The possibility is also proposed of making the right to request flexible working a ‘day one right’ instead of the current requirement of 26 weeks employment before being able to make the request.
The consultation also questions whether the eight business reasons which currently exist for allowing employers to refuse a flexible working request all remain valid. It recommends requiring the employer to suggest alternatives and engage more in the process including permitting temporary arrangements.
The consultation talks of a “rebalancing” of the current framework and making it available for all, rather than the current focus in legislation about what is not possible per the eight available reasons for rejection. It is clear that a cultural shift is required in the way we think about work and how and where it can be done.
The intention overall is to better support employees to start the conversation about contract changes, and to require employers to respond and engage in the process in a more positive and collaborative way. The government would seek it to be a conversation between the parties, about how best to balance particular work requirements and specific individual needs.
Recent headlines of Tribunal decisions concerning flexible working requests are further promoting the importance of this issue, although when drilling down on the facts of the cases in question there is often a significant degree of entrenchment between the parties and other aggravating factors around the actual flexible working request. It is true however that previously flexible working cases received very little attention; the tide is definitely turning.
During the pandemic 47% of the workforce stayed at home, and the government consultation makes clear that employers would be wise to anticipate the likely legislative changes which are keen to make flexible working part of the DNA of the modern workforce.
Anticipating the needs for flexible working and engaging in a collaborative consultation to match business needs and employee requests is likely to become law following the consultation, so employers would be wise to start to anticipate this now.
