Flexible Working Proposed Changes and what this means for Employers?

On 5 December 2022 the UK Government announced its’ commitment to easing restrictive measures currently in place concerning flexible working and will be supporting the Employment Relations (Flexible Working) Bill through Parliament. This update does not mean that the changes have or will definitely come about but that it is likely. But what will this mean for employers should it be implemented?

What is Flexible Working

Any pattern of work which differs from the usual pattern of work set out in a contract of employment is a form of flexible working. Examples of this include part-time working, adapting work hours to fit in with care arrangements, job-sharing, shift work and working remotely. Further examples of what might constitute flexible working arrangements are available here.

The current position

At present, employees can make a flexible working request of their employer. This could be a statutory request or a non-statutory request. Whilst the latter has no set procedure or eligibility requirements other than that dictated by an employer’s own policies, the employee has to have worked for their employer for at least 26 weeks in a row (by the date of their application), in order to make a statutory request.

As an employer, it is important to be clear as to what period a flexible working arrangement is for and of the possible variation to the employee’s terms and conditions of employment.

The Acas Code of Practice on flexible working requests provides useful guidance on how to reasonably consider flexible working requests as an employer.

The proposed changes

The government announcement sets out that it is committed to removing the 26 week eligibility period to make a statutory request and instead wants this to become a day one right.

Under the new measures, employers would also be required to explore alternative options with the employee in question before rejecting any request.

In terms of timescales, an employer could be required to respond to a flexible working request within 2 months, as opposed to the current 3, and any employee would be permitted to make 2 requests per 12 month period.

At present, employees are also required to give consideration to how their flexible working request might affect their employer and how these could be addressed by the employer. Under the proposed changes, this would no longer be required.

The full government response to the consultation is available here.

Discrimination Considerations

It’s important to note that any request for flexible working arrangements could be considered a request for a reasonable adjustment depending on the circumstances. If an employee is disabled, as defined by section 6 Equality Act 2010, and a particular physical feature, provision or practice puts them at a substantial disadvantage compared with those who are not disabled, an employer has a duty to make reasonable adjustments.

It’s important to carefully consider this duty as set out in in section 20 Equality Act 2010 so as to avoid potentially giving rise to a disability discrimination claim.

Should you have any queries or concerns about a current flexible working arrangement request, or potential discrimination claim, please do not hesitate to contact the Employment Law Department for assistance on 01202 525333 or by email at employment@ellisjones.co.uk.