Flexible working proposals published – but is practice outpacing the law?

The UK government has at last released its proposals for flexible working reform, which have been expected since the Conservative Party published its 2019 manifesto for the general election.

Despite the fact that the pandemic forced many employers to embrace homeworking arrangements, the proposed reforms are limited.  Campaigners for more extensive reform will be left underwhelmed. With employees now expecting to have longer-term remote working options based on their experience of the last 18 months, however, the reality is that many employers are already proactively upgrading their flexible working policies. Some organisations are now offering automatic unlimited remote working, and most office-based employers are expecting to operate a combination of home and office working.

The Conservative’s original election manifesto promised that (subject to consultation) flexible working would be the “default” situation. The proposals that have just been published for consultation, however, would maintain the existing “right to request” framework, and would not increase the obligations on employers to agree to any request. The consultation document makes it clear that the government does not believe a one-size-fits-all policy would be workable, and that individual organisations need to have scope to identify what sort of flexible working can be accommodated within their business. The government has also said it is not taking forward earlier suggestions that employers should be required to publish their flexible working policies on their websites or specify in job adverts whether flexible working would be considered.

The key plank of the proposals is to change the existing law to allow employees to make a flexible working request from the first day of their employment, rather than waiting until they have 6 months’ service as the current law requires.  

The consultation also seeks views on other potential changes to the existing regime. The government is looking at whether the current three-month period for dealing with a request should be shortened, and at whether employees should be allowed to make requests more frequently than once per year (apparently to address situations where an employee’s need for flexibility is only short-term).

The current legal framework only allows employers to refuse requests if their reasons fall within the eight business reasons specified in the legislation (including extra cost, inability to re-organise work among existing staff, and negative impact on quality, performance or ability to meet customer demand). The consultation asks for views on whether those reasons remain appropriate, although it implies that there is unlikely to be any change on this issue. The consultation also invites views on whether employers should be required to consider alternative flexible working arrangements before refusing an employee’s specific request. This could be a more significant practical change, if it is implemented.

What does not seem to be up for discussion, however, is the penalty regime. Under the current flexible working framework, the penalties for failing to deal with a request properly, including refusing it without a valid reason, are relatively limited. These do not look set to change. That means that the maximum penalty would remain at eight weeks’ pay (subject to a statutory cap on a week’s pay) – a maximum of £4,352.

In practice, disputes about flexible working are rarely only about whether the employer has complied properly with the flexible working framework. Often, there are underlying issues which could result in an indirect discrimination claim – for example in relation to sex, if a woman is asking for flexibility to accommodate childcare, or in relation to disability, if the request is for health reasons (and there may also be an obligation to make reasonable adjustments). This means that employers frequently need to consider whether they can objectively justify a refusal, not just whether they can list one or more of the eight specific business reasons for refusing a request, permitted by the flexible working legislation. In contrast to the penalties under the flexible working framework, compensation for discrimination has no upper limit.

The consultation makes no mention of the interplay between the “right to request” framework and discrimination law. However, the government is proposing to reconvene its Flexible Working Taskforce to provide wider advice on best practice, which could be expected to take discrimination issues into account. 

In the meantime, with pressure on organisations to offer attractive flexible working arrangements in order to recruit and retain talent, employers are likely to be moving at a faster pace than the government’s proposals when it comes to flexible working policies.

Carolyn Soakell is a partner in the Employment, Immigration and Reward team at Lewis Silkin LLP

Author: Editorial Team

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