Flexible Working: The Default Position?

October 1, 2021


The UK government has launched a consultation entitled “Making Flexible Working the Default” asking for views on whether to make flexible working the default position. The consultation sets out various proposals for reshaping the existing regulatory framework, including, most notably, whether employees should have the right to request flexible working from the first day of their employment.

What is the current law on flexible working?

Any employee with at least 26 weeks’ continuous service has a right to make a request for flexible working. However, employees can only make one flexible working request in a 12-month period.

When making a request for flexible working, an employee can request:

  • A reduction in working hours

  • Flexibility with start and finish times (also known as “flexitime”)

  • Compressed working hours

  • Remote working

  • Job sharing

If an employee makes a flexible working request, an employer must fairly consider the request and respond to the employee within 3 months.

The current law on flexible working stipulates that employers may only refuse a flexible working request for one or more of the following eight reasons:

  1. The burden of additional costs;

  2. Detrimental effect on ability to meet customer demand;

  3. Inability to reorganise work among existing staff;

  4. Inability to recruit additional staff;

  5. Detrimental impact on quality;

  6. Detrimental impact on performance;

  7. Insufficiency of work during the periods the employee proposes to work; and/ or

  8. Planned structural changes.

What are the proposed changes?

The new consultation, ‘Making Flexible Working the Default’ is seeking views on whether to make flexible working the default position. It sets out the following five proposals for reshaping the existing regulatory framework to support this objective:

  • Making the right to request flexible working a ‘day one’ right by removing the 26-week qualifying period;

  • Whether the eight existing business reasons for refusing a statutory request for flexible working remain valid;

  • Requiring employers to suggest alternatives if they intend to refuse a request;

  • The administrative process underpinning the right to request flexible working, and

  • How the right to request a temporary flexible arrangement could be better utilised.

What does this mean for employers?

As the new consultation is merely seeking views on proposed reforms, at present, there are no immediate changes that will affect employers. However, employers should be mindful that the consultation may indicate that changes to the flexible working framework are on the way – particularly given the significant increase in flexible and hybrid working in light of the Covid-19 pandemic.

However, it is also important for employers to note that the consultation is only seeking views on whether employees should have the right to request flexible working from the first day of their employment, rather than the right to work flexibly from the first day of their employment. As such, any reforms would be unlikely to impact employers significantly.  


If you need advice on handling flexible working requests in the best possible way with as little risk to you, contact Owen John on ojohn@darwingray.com / 02920829122 for an initial free, no-obligation conversation.



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