BEIS consultation on flexible working

On 23 September 2021, the Department for Business, Energy and Industrial Strategy (BEIS) launched a consultation containing proposals to reform the current flexible working regulations and to make flexible working the default approach for employers and their staff in the future.

Although the consultation is not proposing that there should be an absolute ‘right’ to flexible working, it includes a suggestion that flexible working should be the default, with a right for an employee to request flexible working patterns from day one of a new job.

The Government has said that the plans would fulfil its 2019 election manifesto promise to make flexible working the default option for workers.

“It was once considered a ‘nice to have’, but by making requests a day-one right, we’re making flexible working part of the DNA of businesses across the country,” said Business Secretary Kwasi Kwarteng.

Experts have warned that the proposals fall short of giving workers the full right to flexible working and simply allow the request to be made. They do not, however,  require that the request is granted, and it is predicted that without cultural change, employers will continue to refuse requests.

The consultation sets out five proposals, the first being the day one right to flexible working, which the Government says will give 2.2 million more people access to different working arrangements. Employees currently only have a right to request flexible working after 26 weeks of continuous employment.

It also considers whether the eight business reasons outlined in the Employment Rights Act 1996 for refusing a request for flexible working remain valid and proposes that it should be a requirement for employers to suggest alternatives. BEIS is also consulting on allowing employees to make more than one request every 12 months (this being the current limit), reviewing the three-month response period currently mandated, and exploring ways to encourage time-limited requests, which are allowed in the current framework but under-utilised.

It is important to note that the proposals are clear that employers should still be able to reject a request if they have sound business reasons for doing so, and that specific flexible arrangements would not be prescribed through legislation, which has led to criticism from various organisations such as trade unions.

There are various case law examples of employees successfully taking their employers to tribunal over a rejected flexible working request. The advice is always for employers to approach flexible working requests with an open mind to avoid making decisions based on assumptions, and to attempt to come to a compromise, even if there are sound business reasons for rejecting the employee’s request.

The Government’s consultation is open for submissions until 01 December 2021. You can find out more and participate via the official website here.