Flexible working, inflexible legislation – time for a change

In September, the Department for Business, Energy and Industrial Strategy (BEIS) launched a public consultation on “Flexible Working by Default” seeking views on how improvements could be made to the UK’s flexible working arrangements.

The consultation closed this week and so the department will now consider all of the responses before publishing its plans.

AAT responded to the consultation and set out a range of recommendations to ensure that more people are able to benefit from flexible working.

A “day one” right?

AAT has urged the Government to ensure that flexible working is a “day one” right rather than being something that is only available to those who have worked for the same employer for at least 26 weeks as at present.

There appears to be very little justification for making employees wait such a long time to make the most of their employer’s benefits package and to treat them differently to longer-serving workers. The fact that the current 26-week restriction prevents more than 2 million individuals from working flexibly is also a compelling reason to make the change.

That said, AAT believes that consideration should be given to going further than this. The consultation makes no reference to the possibility of making work genuinely flexible by default by introducing an automatic assumption of flexible working for all employees. This would place the onus on employers to justify why they cannot provide flexible working rather than an employee having to justify why they should. Such a change would still need to include some limited exemptions for business reasons but would more dramatically shift attitudes, approaches and outcomes.

There is cross-party political support for such a change. The Labour Party recently adopted this as their official policy position and current Treasury Minister and Conservative MP Helen Whately introduced a ten-minute rule bill to this effect in 2019.

It could also be argued that this was the Government’s original policy intention. Its 2019 manifesto committed to “consult on making it the default unless employers have good reasons not to”, rather than consulting on the mere right for employees to ask.

Reasons for refusal

There are currently eight reasons that employers can legitimately give in order to reject flexible working requests.

The consultation document stated that “…only a minority (9%) of statutory requests are in fact rejected…” and so there is no case for fundamentally changing these reasons. However, survey after survey has found that at least a quarter of working mums have their flexible working requests rejected. Last month, a TUC survey of 13,000 working Mum’s found that half had their flexible working requests either rejected or only partially accepted.

Further research from “Chief Executive Women” and Bain & Co indicates flexible working requests from men are twice as likely to be rejected.

Given the high number of rejected requests, that many of these requests appear to be rejected unreasonably, and that certain groups of individuals are having their requests rejected more readily than others, a fundamental review of these reasons for rejection should be undertaken.

Administrative improvements to help employees

The administrative process underpinning the right to request flexible working needs overhauling.

Employees should be able to make a request more than once every 12 months but are prevented from doing so under existing legislation.

Such a lengthy period without any such rights favours employers whilst doing little to take into account the often rapidly changing personal circumstances of an employee, whether becoming a new parent, suddenly facing unexpected caring responsibilities or myriad other issues from disability to relationship breakdown.

The 12-month period should be reduced to ensure greater balance between the needs of the employer and the employee. Whether this be 3, months, 6 months or some other time period, or indeed if there should eb a time period at all – it could instead be based on evidencing a material change in the employee’s circumstances for example – requires further consultation with both employers and employees and their representative groups to ensure a robust evidence base is utilised to determine what changes should be made here.

On a similar note, many employees may feel that three months is too long for an employer to respond to a flexible working request, whilst employers are likely to support such a maximum response time given it affords them the opportunity to consider the various implications and make an informed decision. When considering any change here, the key is to make sure an employer responds as promptly as possible without placing any undue burden on that employer to respond within an unreasonable timescale. Two months i.e. 60 days, would appear to better strike this balance. Whilst not being quite as speedy as many employees would like, any shorter period than 60 days runs the risk of causing employers difficulties that may cause knee-jerk rejections and of course, such rejections not only undermine the policy intention but serve neither the employer nor employee’s best interests.

The current legislation around flexible working was well-intentioned and certainly brought about improvements but it did not go far enough, has been shown to have various weaknesses and is now ripe for reform. We very much hope that the Government will take forward some of AAT’s recommendations so that much-needed improvements are made.

Phil Hall is AAT's Head of Public Affairs and Public Policy.