Future Developments - Right to Request Flexible Working

On 28th October 2022, the Government confirmed in Parliament that it will support the Employment Relations (Flexible Working) Bill, a Private Members' Bill that was introduced into Parliament on 15th June 2022.

The bill if passed will:

• simplify the process to apply for a flexible working arrangement by removing the requirement for an employee to explain any potential effect they think the change in their working pattern will have on their employer and how, in their opinion, that effect could be dealt with;
• allow an employee to make two applications (rather than one) for a flexible pattern of work during any 12-month period;
• require an employer to consult with the employee about their flexible working application before refusing it; and
• shorten the period of time an employer has to notify the employee of its decision about their flexible working application to two (rather than three) months.

In addition, the Government carried out a consultation in late 2021 on proposals to reform the statutory right to request flexible working. In December 2022 the government published its response to the consultation Making flexible working the default.

Although it's hard to argue changes proposed in the consultation response 'make flexible working the default' they do go some way to widening the pool of employees able to make a request by proposing:

• making the right to request flexible working a Day One Right (it is currently only available to employees with 26 weeks' continuous service), this remains a right to request, not a right to a flexible working arrangement
• introducing will be a new duty for employers to discuss alternatives to the request (so that if the employer intends to reject the request, they must discuss whether there are alternative forms of flexible working available), it is not clear yet whether this will be a statutory requirement

There will be no change to the list of eight reasons currently in place that employers may use to refuse a request for flexible working. The consultation paper states that primary legislation is required, but does not include any draft legislation or set out a timetable for when we might see these changes implemented.

HR Customers can find current guidance on handling a flexible working request here.

We will update our guidance once the new legislation is implemented.