The Department for Business, Energy and Industrial Strategy (BEIS) has published the government’s response to the consultation ‘Making Flexible Working the Default’, confirming that millions of employees will receive a day one right to request flexible working, empowering them to have a greater say over when, where and how they work.
The government has emphasised that flexible working is not just about combining working from home and in the office, it can mean employees job-sharing, using flexitime and working compressed, annualised or staggered hours. Enhanced guidance has been promised to help raise awareness and understanding of how to make and administer temporary requests for flexible working. The government has committed to take forward measures that will require employers to consult with their employees as a means of exploring options before rejecting a flexible working request. How prescriptive this consultation requirement will be remains to be seen.
Employees will be allowed to make two flexible working requests in any 12-month period, as previously only one request could be made in any 12-month period. Employers will be required to respond to requests within two months, whereas they previously had three months to respond. Employees will no longer be required to set out how the effects of the request might be dealt with by the employer.
The last two and a half years have seen an unprecedented increase in flexible working, with the pandemic acting as a catalyst for change. Despite the tightening up of the flexible working regime outlined by the government, many employers are already offering increased flexibility.
In order to retain top talent and promote a culture of diversity and inclusion, it is essential that employers take flexible working requests seriously and consider innovative ways to make requests work. Open communication between the employer and employee is key.
Having a blanket policy of not allowing employees to work flexibly can be incredibly detrimental to organisations, from the risk of discrimination claims to a reduced talent pool. However, it is also important that employers retain the right to refuse certain requests when there is an insurmountable clash with business needs, the response to the consultation makes it clear that the current list of business reasons for refusing a request will be retained. Employers have faced an incredibly challenging period; business continuity remains a top priority.
Joanne Frew is global head of employment law at DWF