The government has proposed new legislation which plans to give employees the right to ask for flexible working from day one at their first job. But what are the current rules around flexible working? And what exactly would the new legislation mean for both employees and employers?


In addition to their plans to make flexible working easier, the government also plans to remove exclusivity clauses for low-income workers. You can find out more about this in our breakdown here.


What is flexible working?


Flexible working is a relatively broad term, which can have different meanings based on the a country’s laws. The lockdowns which occurred as a result of the Covid pandemic necessitated many employees (37% of working adults) working from home. This was an arrangement which for many was beneficial for businesses as it allowed them to save on rent while continuing to receive a consistent level of performance from staff.


In the UK, flexible working comes in several forms including:


  • Job sharing
  • Part time
  • Work from home
  • Compressed hours
  • Flexitime
  • Annualised hours
  • Staggered hours
  • Phased retirement


While people often associate flexible working purely with just working from home, clearly there are many other facets to flexible working. Many of these types of flexible working will be beneficial to those who are sometimes marginalised by the standard 9-5 office culture, such as working mothers.


Current rules around flexible working


At the moment, employees have to wait for 26 weeks before asking their employer for flexible working arrangements. If the employee makes a request for flexible working, the employer is currently required to consider the request carefully. They can only refuse it for a valid business reason. This is known as making a statutory application.


How does this work?


1. The employee writes to the employer in the form of an email or a letter

2. The employer then considers the request and makes a decision within 3 months

3. If the employer agrees to the flexible working, they must change the terms and conditions of the employee’s contract

4. However, if the employer disagrees then they must write to the employee giving the business reasons for the refusal


These business reasons for rejecting the proposal can come in a variety of forms. Included in these are the following:


  • extra costs that will damage the business
  • the work cannot be reorganised among other staff
  • people cannot be recruited to do the work
  • flexible working will affect quality and performance
  • the business will not be able to meet customer demand
  • there’s a lack of work to do during the proposed working times
  • the business is planning changes to the workforce


There is currently no right to a statutory appeal, however employees do have the right to go to an employee tribunal in certain circumstances. They cannot, however, go to an employee tribunal just because their request was rejected.


What are the new proposals?


These new proposals would make it much easier for employees to request flexible working, in a move the government is called “making flexible working the default”.  Unlike the current rules, employees will not have to wait 6 months before requesting the right to flexible working. Instead, they will be able to request it from their very first day.


Before rejecting a request for flexible working, an employer will actually have to sit down with their employee and have a discussion about it. This includes exploring the available options and perhaps offering a compromise to the employee.


Further commitments include the right of an employee to make 2 flexible working requests in any 12-month period and to require employers to respond to requests within 2 months rather than 3 months.


Proponents of flexible working have championed its credentials of a way of making the world of work more inclusive and helping businesses to attract employees.


Our thoughts


These changes seem like a common-sense approach by the government to the employment market by giving employees more flexibility over their approach to flexible working. It will subsequently be much more difficult for a business to point blank refuse to grant an employee a form of flexible working.  For some businesses of course, this will be more suitable than for others. Nevertheless, for many this will benefit them greatly by resulting in happier staff, with studies showing that flexible working helps with staff retention.


If you are unsure of your rights when it comes to request flexible working, or you would like help navigating the legal ramifications of flexible working for your business, feel free to contact us for legal advice and we will be happy to help you.


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