Changing the right to request flexibly

Currently, UK employees have the right to request to work flexibly courtesy of two pieces of legislation:

1. The Flexible Working Regulations 2014 which updated the Employment Rights Act 1996 in Great Britain (see the ACAS Code of Practice on flexible working requests)
2. The Flexible Working Regulations (Northern Ireland) 2015 which updated the Employment Rights (Northern Ireland) Order 1996 (see the NIbusinessinfo ‘law and best practice ’ guide)

Employers and employees need to consider both employment law jurisdictions and respect the fact that things that happen in Great Britain may not be the same as things that happen in Northern Ireland.

All UK employees have the right to request to work flexibly by making a written statutory application to their employers.? This application will detail how the employee wants to work flexibly and when they want this to start.? The employer has a statutory obligation to consider the application but does not have to accept it if there are ‘good business reasons’.?

Further, the legislation, now part of the overriding 1996 legislation, states how the employee can take the employer to an Employment Tribunal (or Industrial Tribunal in Northern Ireland) and seek compensation where the request is refused and is not ‘well-founded’.

Importantly, the following conditions apply:

• The employee must have worked continuously for the same employer for 26 weeks before making the application and
• They must not have made a similar application to work flexibly in the previous 12 months

On 23 September 2021, the Department for Business, Energy and Industrial Strategy (BEIS) launched a consultation entitled ‘Making Flexible Working the Default’ to reform the 1996 legislation – in Great Britain.

It is worth looking at three things before analysing what the Consultation says:

1. The 2019 Conservative Party Manifesto said ‘We will encourage flexible working and consult on making it the default unless employers have good reasons not to’
2. The 2019 ‘Good Work Plan ’ recommended encouraging employers to offer flexible working with the aim to ‘improve access to flexible working for all’ and
3. The 30 June 2021 Labour MP Tulip Siddiq’s Private Members' Bill that was introduced to Parliament which would have seen the statutory right to work flexibly from day one of employment

It is worth noting that there is a marked difference between the right to request to work flexibly and the statutory right to work flexibly.? Asking to do something is not the same as having the right to be able to do it.? 1 and 2 above are dealing with the right to request, whereas number 3 was the statutory right to work flexibly from day 1.??

Although, regardless of the right to request or the right to work, the employer will always be able to refuse if this cannot be granted because of one (or more) the following reasons, as per Section 80G of the Employment Rights Act 1996.? Note that reference to these in the consultation is not in the same order as the 1996 legislation:

1. Extra costs that will be a burden on the business
2. The work cannot be reorganised among other staff
3. People cannot be recruited to do the work
4. Flexible working will negatively affect quality
5. Flexible working will negatively affect performance
6. The business’ ability to meet customer demand will be negatively affected
7. There’s a lack of work to do during the proposed working times
8. The business is planning structural changes

This is a large 52-page consultation document but it is worthwhile saying that:

Aside from the table of contents, these pages are all to do with the initial introduction of the right to request (in 2003 for parents and carers), the extension in 2014 (to all employees with the service criterion) and the UK Government’s approach.

The consultation does not actually start until page 12.

This is called Annex A and is all about the types of flexible working that may be offered by an employer and how the UK Government (in Great Britain) wants to ‘normalise flexible working’.

This is called Annex B and contains an analysis of the responses to the 2019 ‘Good Work Plan: Proposals to support families’ consultation, specifically? the part about the transparency of flexible working and family related leave and pay policies.? This will require large employers (250 employees or more) to publish their family related leave and pay and flexible working policies.

The analysis contains graphs and charts that say things such as ‘96% were in favour’ and a breakdown of who responded to the consultation.? I do not see that it gives any more information than that.

So, for the consultation about extending the right to request flexible working, the above pages can be ignored!? In effect, we are only looking at pages 12 – 30.? That makes the document a lot more palatable and focuses the attention on covering the following five themes:

1. Making the Right to Request Flexible Working a day one right
2. Whether the eight business reasons for refusing a Request all remain valid
3. Requiring the employer to suggest alternatives
4. The administrative process underpinning the Right to Request Flexible Working; and
5. Requesting a temporary arrangement

In the document, these outline the 7 questions that determine who the respondent is, the organisation, sector and size.? Therefore, if responding online , this indicates the questions that will be asked.

Alternatively, respondents can reply by E-Mail to [email protected] , in which case the response should be structured accordingly.

Page 16 and 17 (top) concludes with question 8, 9 and 10 which ask:

• Do you agree that the Right to Request Flexible Working should be available to all employees from their first day of employment?
• Please give reasons for your answer, including any considerations about costs and benefits that may affect employers and/or employees
• In your organisation, do you currently accept requests for flexible working arrangements from employees that have less than 26 weeks continuous service??Please answer this question from the perspective of the employer

These consider the eight valid business reasons why an employer may reject an employee’s request to work flexibly.? Whilst there is text that says these could change, there is also text to indicate that they are still valid.? Page 18 concludes with questions 11, 12 and 13 which ask:

• Given your experiences of Covid-19 as well as prior to the pandemic, do all of the business reasons for rejecting a flexible working request remain valid??Please answer this question from the perspective of the employer.
• If yes, please give reasons for your answer
• If no, please state which reasons from the list above are no longer valid and why

This section considers the current flexible working request situation where the employer can refuse this by stating one of the eight business reasons above.? In refusals, the below questions consider whether the employer and employee need to negotiate and the employer required to suggest alternatives, for example, accommodating some of the request or making the arrangement for a period of time, say six months rather than a permanent change.

Questions 14, 15, 16 and 17 ask:

• Do you agree that employers should be required to show that they have considered alternative working arrangements when rejecting a statutory request for flexible working?
• Please give reasons for your answer
• Would introducing a requirement on employers to set out a single alternative flexible working arrangement and the business ground for rejecting it place burdens on employers when refusing requests?
• If yes, would this requirement have an effect on the time taken by employers to handle a request??

This section considers the fact that the current situation allows the employee to make one request to work flexibly every 12 months and the employer has 3 months to consider the application.? Whilst stressing that ‘clear business reasons’ remain a priority consideration, they should not act as a total barrier to flexible working and questions 18 to 25 ask about allowing employees to make more than one statutory request per year and whether the three-month consideration period is still valid:

• Do you think that the current statutory framework needs to change in relation to how often an employee can submit a request to work flexibly?
• Please give reasons for your answer
• Do you think that the current statutory framework needs to change in relation to how quickly an employer must respond to a flexible working request?
• Please give reasons for your answer
• If the Right to Request flexible working were to be amended to allow multiple requests, how many requests should an employee be allowed to make per year?
• Please give reasons for your answer, including any consideration about costs, benefits and practicalities
• If the Right to Request flexible working were amended to reduce the time period within which employers must respond to a request, how long should employers have to respond?
• Please give reasons for your answer, including any consideration about costs, benefits and practicalities

This section is all about familiarity with current statutory leave arrangements in Great Britain and whether employers and employees are aware of the right to work flexibly for a time-limited period, for example, as a result of short-term caring responsibilities.? Questions 26 and 27 ask:

• Are you aware that it is possible under the legislation to make a time-limited request to work flexibly?
• What would encourage employees to make time-limited requests to work flexibly? Please provide examples

So there are 27 questions, 7 of which are for information purposes only so the UK Government can see who is responding.

The other notable parts of the document are reference to the reformation of the Flexible Working Taskforce whose first task is to look at the requirement for large employers to publish their flexible working policies (at page 25 and Annex B).? It also asks for opinions on what other ‘extra’ flexibilities could be introduced into the workplace by requesting responses to:

• Please share your suggestions for the issues that the call for evidence on ad hoc and informal flexible working might consider

Responses are due by 01 December 2021:

Online - https://beisgovuk.citizenspace.com/lm/flexible-working

By E-Mail - [email protected]

Responses by employers and individuals is important given the wording on page 30 that says: