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Legal changes

The future of flexible working — what do employers need to know?

The Government commits to introducing changes to the flexible working request process

The Government has recently issued its response to a consultation which contained proposals to reform flexible working regulations. In its response, the Government has committed to introducing changes to the flexible working request process, which would have consequences for both employers and employees.

What are the changes? 

1. The right to request flexible working will become a day-one right

Since 2014, all employees with 26 weeks continuous service have had the right to request flexible working. Under the proposed measures, the 26-week qualifying period will be removed, meaning that employees can make a statutory request for flexible working from the first day of employment.

It is important to stress that the change relates only to the right to request flexible working, rather than an automatic right to be granted flexible working. Employers can still refuse such requests if there is a good business reason for doing so.

2. Employers will have to consult with employees, as a means of exploring the available options, before they reject a flexible working request.

The Government has chosen to retain the eight business reasons that employers can rely on to refuse a flexible working request. However, under the new measures, if the initial request is unworkable, employers will be required to explore potential alternative forms of flexible working with the employee as part of a consultation. Many employers already discuss flexible working requests with an employee if they are considering rejecting them, in accordance with the guidance in the Acas Code of Practice on handling flexible working requests.

3. Employees will be allowed to make two flexible working requests in any 12-month period (an increase from one request).

4. Employers will have to respond to flexible working requests within two months (a reduction from three months).

5. Employees will no longer have to set out what effects their flexible working request would have on the employer and how they might be dealt with.

When will the changes be introduced?

In its response, the Government has said that it will introduce  the right to request flexible working from the first day of employment, through secondary legislation, “when parliamentary time allows”. The other four changes set out above will require primary legislation.

The response does not set out a timetable or include any draft legislation. However, a Private Member’s Bill is currently progressing through Parliament, through which some of the changes could take effect.

What should employers do now?

Although the timescale for the changes is currently uncertain, employers should be prepared to review and update their flexible working policies to ensure that they comply with the new requirements once they have been implemented.

Some of the new measures will place extra burden on employers and might lead to employers receiving an increased number of requests.

Members of staff that deal with flexible working requests should receive training to ensure they are familiar with the new processes and time limits. This will be important in helping to avoid complaints from employees and to minimise the risk of claims.

For further information on Employment contracts, policies and procedures, please contact the author Ben Dos Santos on +44 (0)207 227 6729 or alternatively, you can get in touch with your usual Weightmans contact. 

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