Government set to address reform of flexible working rights for employees - Euan Bruce

The subject of employment law reform has been on the government’s to-do list for several years. Other issues have, quite understandably, pushed these reforms down the list of priorities and we have regularly heard that they will be addressed “when parliamentary time allows”.

One issue that is now set to be addressed, however, is the reform of flexible working rights for employees. The proposed reforms follow the government’s consultation paper from 2021, which looked at making flexible working the “default”. Against the backdrop of lockdowns and remote working, this was welcomed by employees who had sampled the benefits of working more flexibly and were keen to continue that.

Things have moved on, with many employers taking a firmer line on having employees back in the workplace. However, there is a much greater demand for flexible working than ever and employers run the risk that if they do not offer sufficient flexibility, then talented employees may look elsewhere.

The proposed reforms do not go so as far as making flexible working the default as the consultation had suggested. However, they do make it easier for employees to seek flexible working and, as a result, place a greater onus on employers to give due consideration when requests are made.

Euan Bruce is a senior lawyer in DLA Piper’s Employment practice

The reforms proposed include:

The right to request flexible working will become a “day-one” right available to all employees and no longer only those with 26 weeks’ continuous service. Employees will be entitled to make two flexible working requests within a 12-month period rather than one. Employers will be required to respond to a flexible working request within two months of the request rather than the existing three-month timescale (this includes dealing with any appeal). Employees will no longer be required to set out how the effects of their flexible working request might be dealt with by the employer. Employers will now be required to consult with their employee to explore alternative options before rejecting a request.

One key issue not changed by the proposed reforms is that the ultimate decision rests with the employer. The employer can only rely on a limited list of reasons for rejecting the request but, provided it has given due consideration to the request and believes it has good reason for refusal, an employment tribunal is unlikely to interfere. Furthermore, the list of reasons for refusal have sufficient leeway to cover most situations, including the burden of additional costs, impact on quality or the ability to meet customer demand and an inability to reallocate work to colleagues or recruit extra staff.

Employers may find their decision-making comes under much closer scrutiny because employees have managed to work from home effectively during the pandemic. Employers may, therefore, be expected to have more tangible evidence that justifies refusal of a flexible working request, rather than just a feeling that staff work better in the workplace. Nonetheless, it remains the employer’s decision.

The real impact of the reforms is likely to be the practical process of dealing with requests. The reforms may mean many employers may see an increase in the number of flexible working requests that they have to deal with. Managers should be supported to ensure that they recognise flexible working requests and know the processes to be followed. The shortened timescale of two months, together with the requirement to consider alternatives as part of the process, means delaying dealing with a request runs the risk of falling foul of the statutory provisions.

It is important for employers to get the process right. Failure to give due consideration to a request or to conclude the process within the strict timescales can mean a claim for up to eight weeks’ pay (capped at a statutory maximum – currently £571 p/w).

For larger employers, consistency will also be key. Refusal of a flexible working request can often be the starting point of a discrimination claim, often on the basis of sex or disability. If an employer takes the view that more time should be spent in the office, it is important to apply the message consistently by managers and to avoid special cases, unless there is clear justification for doing so. Failure to take this approach may mean much more costly claims of discrimination against the employer.

Euan Bruce is a senior lawyer in DLA Piper’s Employment practice