Potential changes to flexible working legislation

By Alec Colson

Partner – Head of Employment

01 March 2023

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At the beginning of December 2022 the Department for Business, Education and Industrial Strategy published its response to its 2021 consultation on flexible working. The media headlines gave the impression that employees will have the right to work from home from day one of their employment however, this is not the case.

The initial consultation paper detailed a number of proposals to amend the existing right of employees with 26 weeks’ service to request a change to their employment contract in relation to:

• 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).

The government has now proposed to give employees the right to request flexible working as a day one right. Under the government’s new proposal, an employee will be able to make this request on their first day of work.

However, it is a right to request flexible working and not a right to work flexibly from day one. Therefore, a newly appointed employee cannot demand that they work from home from day one.

The government will retain the current list of business reasons for refusing a flexible working request, which are:

• 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.

Employers will be required to consult with their employees and to consider alternative options before rejecting their flexible working request. This is in accordance with the current ACAS Code of Practice on flexible working.

Employees will be able to make two flexible working requests within any 12-month period as opposed to the current single request and employers will be required to respond to a flexible working request within 2 months, rather than the current 3 months.

The requirement for employees to set out the effects of their flexible working request on the employer will be removed.

The government believes that rather than placing the sole responsibility on the employee to set out the effect of their request on the employer, employers should seek to engage with employees jointly to understand  the impact of the flexible working request on the business.

This is consistent with making the right to request flexible working a day one right as a new employee would not be in a position to assess the impact of their request at the beginning of their employment.

When will the proposed changes be implemented?

The government has not announced an implementation date for the above changes and it may be some time before the legislation is introduced. In reality, the proposed changes are a modification of the existing rights to request flexible working and not a right to work from home.

Having said that, employers may find that the proposed changes and the publicity that surrounds them will encourage employees to request working from home for at least some of their working hours, either before or shortly after they have commenced their employment.

Where it is possible to work from home, anecdotal evidence suggests that many employees are already enquiring about home working at the interview stage and many working from home arrangements of one form or other will be agreed prior to the employment commencing.

As with all such employment matters, it makes sense for employers to seek advice and review their procedures before responding to these changes, as and when they come into effect.

Alec Colson is a Partner and Head of our Employment Law department. 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. If you have an Employment Law query you can contact Alec directly via email or call his office on 01582 731161.

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