Flexible Working Consultation – Progressive or Emperors New Clothes?

I read with interest this week that a consultation has been launched by the Department for Business, Energy & Industrial Strategy (BEIS) seeking views on proposals to reform The Flexible Working Regulations 2014.

The consultation can be found at

https://www.gov.uk/government/consultations/making-flexible-working-the-default

For those of you who don’t want to open the link the sections below sum up the whys and potential amends to the current process which is statutory and currently requires an employee to have 26 weeks service:-

“This consultation sets out five proposals for reshaping the existing regulatory framework

so that it better supports the objective of making flexible working the default. The

intention is to better support employees to start the conversation about contract

changes, and employers to respond. It considers:

? making the Right to Request Flexible Working a day one right;

? whether the eight business reasons for refusing a 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.

We know there are particular times in people’s working lives when they may need a bit

of extra flexibility, to balance their work with other commitments or responsibilities. That

is why the Government’s manifesto committed to build on existing leave entitlements by

introducing two new leave rights for working carers and those with a baby in neonatal

care, and also to make it easier for fathers to take paternity leave. But it is clear that

there are also many other occasions when people may need that little extra flexibility –

for instance as they approach retirement, need to care for elderly relative, recover from

a longer-term health condition, or as childcare arrangements change. Or even just to get

medical treatment or attend other appointments.

workers who have more flexibility are more motivated at work and more likely to stay with their employer

There is… a strong, unmet demand for more flexible jobs. The business case for

flexible working is absolutely clear

Making flexible working the default is central to our ambition to build back better. But we

are clear that there can be no “one-size-fits-all” solution. Determining what flexible

working arrangements work best in any particular context will involve careful

consideration of a wide range of personal and organisational issues.

?

Part of our thinking about how to make flexible working the default has included the

potential to turn the current Right to Request into a “right to have”, removing the ability

of an employer to turn down a request. However, given the range of different roles and

ways of working within them, the multiple forms of flexible working, the broad range of

individual needs and the wide range of business models, even within sectors, we do not

consider this achievable in a practical or sensible way.

A statutory application under the right to request flexible working legislation involves the

following steps:

1) The employee notifies the employer of the request and that it is under the Right to

Request Flexible Working legislation.

2) The employer considers the request and notifies the employee of the decision within 3

months – or longer if agreed with the employee.

3) If the employer agrees to the request, they must change the terms and conditions in

the employee’s contract.

4) If the employer disagrees, the refusal must be based on one of eight business reasons

cited in the Employment Rights Act:

a) extra costs that will be a burden on the business

b) the work cannot be reorganised among other staff

c) people cannot be recruited to do the work

d) flexible working will negatively affect quality

e) flexible working will negatively affect performance

f) the business’ ability to meet customer demand will be negatively affected

g) there’s a lack of work to do during the proposed working times

h) the business is planning structural changes.

Whilst I am thrilled that finally parts of the Good Work Plan are being put out there for consultation, I am not sure that this is the quite the progress I had hoped for or had anticipated after reading the press coverage

My reading of this is that it will be still a right to request and there will still be ground for refusal, it’s just that those grounds may change.

The 26-week waiting period may be removed but, given the pandemic and progress made without statutory changes by progressive employers, aren’t we already there?

Most employees I know and have interviewed have been up front about their work life commitments and balance for a long time now.

Many employees see flexible working as working from home and there will also be many jobs/roles where working from home is not an option.?Flexible working has always been a lot more than that though.?I’ve accommodated pet owners who wanted to flex hours?for example in order to spend time with their animal which has assisted their mental health.

Many employers have been looking at staff retention for a while now and gone well beyond the formal flexible working process to accommodate wherever they can, in my experience often with no regard to the 26-week period.

What’s not mentioned is the one request per year provision??What will happen there??Given that the government accepts that life is not predicable and the vast range of life events which may affect an employee is this still reasonable?

In terms of timeframes for dealing with requests I’d love to know what your norms are? To my mind you either know whether a request can be accommodated or not quite quickly so why delay??It will be interesting to see what comes out of this consultation if anything about that.

Contrary to popular opinion an employer’s right to reject a flexible work request will also persist despite the other proposed changes in the consultation.

In the event of a rejection, it appears that there are no proposals to alter the remedies available to employees, meaning that these may remain as they currently stand.

These are, an Order for reconsideration of the application; and an award of compensation equivalent to eight weeks’ wages capped at ￡544 per week if successfully challenged in an ET. There is always a discriminatory challenge available of course in certain circumstances but my experience is simply that employees vote with their feet rather than emptying their pockets by litigating at a time when in most cases they need more time and resources in their personal lives (hence the request).

Realistically then, does the Legislation as it stands have any teeth really and will the proposed changes actually enhance any rights? Is the Government modernising the workforce and making flexible working part of the DNA of business in the UK or is it merely tinkering with it with a view to a quick win as it were and in order to gain popularity and good press.

These are all my own thoughts and whilst I do not want to appear critical, I am watching with interest what will happen here.

I really don’t think you can legislate common sense and a decent moral and sensible approach by both parties to the working relationship.??Let’s see…...

TBC

Marie