Flexible working requests – what is changing?

On 5 December 2022, following its Making Flexible Working The Default consultation, which has now concluded, the UK government announced that it will be introducing reforms to the law around employees’ rights to make flexible working requests.

These changes will be introduced via primary and secondary legislation, including the Employment Relations (Flexible Working) Bill which is currently working its way through Parliament. The devil, as always, will be in the detail however the government has committed in full to the following specific reforms:

1. Removing the current 26-week qualifying period so that employees will have the right to make a flexible working request from day one of their employment.
2. Requiring employers to consult with their employees on the available options before rejecting a flexible working request.
3. Increasing the number of flexible working requests an employee can make in any 12-month period from one to 2.
4. Requiring employees to respond to flexible working requests within 2 months, rather than 3 months.
5. Removing the requirement for employees to set out how the effects of their flexible working request might be dealt with by their employer.

These changes will no doubt be welcomed by many employees, particular those with childcare or other caring obligations or those with disabilities which affect their ability to work typical full-time hours. These changes make bringing a flexible working request easier and place additional obligations on employers to respond in a timely manner and consult meaningfully before reaching a decision.

Equally however, there have been no changes to the broad remit employers have to refuse such requests. Such refusal can be based on eight factors, which are:

• The burden of additional costs to the business.
• Detrimental effect on ability of the business to meet customer demands.
• Inability to reorganise work among existing staff.
• Inability to recruit additional staff.
• Detrimental impact on quality.
• Detrimental impact on performance.
• Insufficiency of work during the periods the employee proposes to work.
• Planned structural changes to the business.

As such, while these reforms may increase the number of flexible working requests that are brought, they may have a limited impact on the success rate of flexible working requests.