UK Employees: Day One Flexible Working Rights?

UK Employees: Day One Flexible Working Rights?

December 13, 2022, Covington Alert

The UK Government announced last week that it will introduce legislation giving employees the right to request flexible working from day one of their employment.

In its response to the "Making Flexible Working the Default" consultation, the UK Government has committed to remove the 26-week qualifying period before employees can request flexible working arrangements.

The Department for Business, Energy & Industrial Strategy (“BEIS”) has said that it will pass secondary legislation to make this statutory change, but is yet to set a deadline for doing so.

The UK Government is also supporting the Employment Relations (Flexible Working) Bill. This would place greater obligations on employers to respond quickly and consult more thoroughly with employees before rejecting a flexible working request. The Bill proposes to:

• Increase the number of flexible working requests an employee can make every 12 months from one to two.
• Reduce the amount of time an employer has to respond to any flexible working request from three months to two.
• Make it mandatory for employers to consult with their employees before rejecting any flexible working request.
• Remove the current obligation on employees to set out how the effects of their flexible working request might be dealt with by the employer when making a request. Instead, the Government intends employers to seek to engage with their employees to jointly understand what the impact of their flexible working request would be.

The Bill (available in its draft form here) passed the Second Reading stage of the legislative process on October 28, 2022, and is now with the committee for review. While the Government has not yet indicated when the Bill will come law, this is likely to happen in 2023.

The Government has also committed to develop guidance for employers and employees to raise awareness of how to make and administer temporary requests for flexible working.

Since 2014, all employees with 26 months of continuous service have had the right to request flexible working. The new legislation will not give all employees the right to flexible working from day zero, but will rather give them the right to request it from their employer.

What Should Employers Be Doing Now?

Following the pandemic, many employees already work a flexible schedule and employers are finding increasingly that they need to offer flexibility in order to both attract and retain talent. The consultation response notes that many employers already offer flexible working as a day one right; 69% of the 112 employer responses to the initial consultation confirmed that they already accept requests for flexible working arrangements from employees from the first day of employment. The impact of the new legislation is therefore likely to be somewhat limited in practice.

Nevertheless, employers will need to ensure that their policies and practices are updated by the time the new rules come into force. Given the tighter timeframe for reviewing flexible working requests, additional training should be considered for HR and management that addresses both the new requirements and the implications for diversity and inclusion. Recruitment staff will also need to be aware of and trained in this area, given that discussions regarding alternative work schedules are likely to occur during the application / interview stage.

If you have any questions concerning the material discussed in this client alert, please contact the members of our Employment practice.