Flexible Working Rights – delving into the consultation

UPDATE: Since this article was written, a Private Members’ Bill, the Employment Relations (Flexible Working) Bill  was published on 15 June 2022. The Bill has Government support which makes it more likely that it will become law. The Bill is currently making its way through the Parliamentary process.  In another development, on 5 December 2022, the Government issued its response to the consultation exercise on flexible working. The right to request flexible working will be a “day one” right, currently 26 weeks’ service is needed. Consistent with the Bill, the Government announced that two requests a year will be permitted and the time period for dealing with requests will be two months. In addition, employees will no longer be required to specify how the employer might deal with the effects of the flexible working request. There is no timetable as to when these changes will take effect.

At the same time, the Government has now put forward concrete proposals on a right to unpaid Carer’s Leave.

What do all these mean for employers? Will employers have to publish parental leave and pay policies, flexible working policies or advertise flexible working?

Response to large employers publishing family-related leave and pay and flexible working policies

Beginning with the less-publicised aspects, as well as containing the changes to flexible working questions, the Flexible Working Consultation document is also the Government’s response to its 2019 Consultation on the publication of large employers’ (250+ employees) parental leave and pay policies, flexible working policies, and flexible working job adverts. Despite widespread support both from employers and individuals on publishing both parental leave and pay policies and flexible working policies, the Government has kicked this into the long grass for the two distinct reasons below.

Regarding flexible working policies, it has stated that business are now taking time to review and develop new policies on flexible working since the pandemic and therefore a requirement to publish now would be too soon. There is an understandable logic to that, alongside what could be a long wait to the outcome of the Consultation on the Right to Request Flexible Working and its related provisions (see further below).

However, almost no mention is made of the other policies under consideration in the original Consultation: family related leave and pay policies. It is by no means obvious that employers would be looking to change these policies post-pandemic. In addition, several Consultation questions revolved around simply publishing them on the employer’s website, which was again heavily supported by most businesses and individuals as being a strong driver in assisting recruitment. Yet the Government’s Response to this from last week is that because some of its 2019 questions related to publishing these policies using the Gender Pay Gap Reporting portal on GOV.UK, the question will now be revisited as part of the general review of the impact of Gender Pay Reporting in 2022. This is not really an answer to many of the 2019 Consultation questions on the publication of parental leave and pay policies, but in light of the pandemic and the road to recovery, businesses may be relieved that no action is proposed yet.

The original Consultation also asked questions around whether all employers should have to state whether flexible working was an option when placing a job advert. The Response to that here is a firm “no”, with the hope that changing the statutory rules on flexible working and employers’ own evolving approaches to flexible working will encourage this anyway.

Flexible working consultation

The Government manifesto pledge in 2019 was to consult on making flexible working the “default for all” unless there was a good reason not to. The main headlines of the Consultation published last week have been widely publicised, but as a reminder it proposes:

• making the Right to Request Flexible Working a day one right;
• whether the eight business reasons for refusing a Request all remain valid;
• requiring the employer to suggest alternatives;
• the administrative process underpinning the Right to Request Flexible Working – i.e. whether the employee could be allowed to make more than 1 request per year, and whether the employer response time should be changed; and
• making more use of requesting a temporary arrangement.

It will remain a “right to Request” not a “right to have”. The Government does not see the current 8 business grounds for refusal as an unnecessary barrier, or a case for changing them, but is asking whether employers agree that they are still valid. If these grounds remain, and the Government decides not to require the employer to suggest alternatives, then the title of the Consultation, “Making Flexible Working the Default”, could become rather misleading. The Consultation period ends on 1 December 2021. It remains to be seen whether the outcome and Government response in due course will deliver on this pledge as set out in its press release.

This article was originally posted on 30 Sep 2021 with an update on 11 Jan 2023.