Potential changes to flexible working legislation

The Department for Business, Education, and Industrial Strategy released its response to its flexible working consultation in the beginning of December 2022. The media’s headlines gave the impression that employees would be able to alter their work habits right away, but this is not the case.

Many changes to the law were proposed in the initial consultation document so that employees with 26 weeks of service might request changes to their employment contracts in the following circumstances:

• a change to the hours they work
• a change to the times when they are required to work
• a change to the place of work (as between their home and any of the employer’s workplaces).

Employees will be entitled to request flexible working arrangements starting on their first day of employment, according to the government’s recommendations. An additional 2.2 million people will be able to request flexible working hours if these recommendations are implemented.

By encouraging more young people or those who care for others but were previously unable to commit to a full-time or workplace-based role, this is meant to address the UK’s current skills shortage and encourage them to enter or return to the workforce.

It should be highlighted that this is only the “right” to “request” flexible working hours; it does not imply that such hours will always be permitted. A newly hired employee cannot dictate their schedule right away.

The government would continue to use impose the current list of reasons as to why businesses can reject a request for flexible working, according to the plans. This includes:

• the burden of additional costs
• detrimental effect on ability to meet customer demand
• inability to reorganise work among existing staff
• inability to recruit additional staff
• detrimental impact on quality of work
• detrimental impact on performance
• insufficiency of work during the periods the employee proposes to work
• planned structural changes in the workforce.

Before rejecting a request for flexible working, businesses are required to talk with their employees and weigh all alternative reasonable options under the rules. The most recent ACAS Code of Practice for flexible working is in compliance with this.

Employees will be allowed to request flexible working twice in each 12-month period rather than just once, and employers will be required to reply to such requests within two months rather than the current three months.

The need to explain how a worker’s preference for flexible hours can effect the company will no longer be required.

Instead of placing the whole weight of justifying themselves and the impact of their request on the employer on the employee, the government thinks companies should engage with employees to jointly work through the impact of the employee’s desire for flexible working on the business.

This supports the idea that having the option to request flexible working hours should be given right away because a new hire would not be able to weigh the consequences of such a request before beginning work.

When will the proposed changes be implemented?

The government has not established a timeline for approving the aforementioned modifications, so it might be some time before legislation is introduced. The proposed changes actually alter already-existing rights to request flexible working arrangements rather than enacting new legislation.

Despite this, employers may find that there is an increase in workers asking for more flexible scheduling for at least some of their working hours before or soon after beginning a job due to the publicity surrounding the changes and the anticipated adaptations.

Anecdotal evidence suggests that many candidates are already asking about flexible work schedules during the interview process, including job-sharing, compressed hours, flexitime, part-time, and term-time-only work. Many flexible work schedules will be decided upon prior to the start of the employment relationship.

Before responding to these changes as, or when, they become effective, companies should seek counsel and review their procedures, as with any such employment-related issues.

About the author: Alec Colson is a Partner and Head of Employment Law at Luton headquartered law firm Taylor Walton. He specialises in Employment Law, advising commercial and public sector clients on all aspects of employment law. Alec has a particular expertise in discrimination law and regularly provides training on Employment Law and HR matters.

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