A recent survey* on flexible working which we fed into the government’s consultation – ‘Making flexible working the default’. The survey received responses from 75 organisations across a range of sectors gathering a range of insights across five proposals for reshaping the existing regulatory framework and encouraging better conversations between employers and employees.  The government is considering:

• making the right to request flexible working a day one right;
• whether the eight statutory business reasons available for employers to refuse flexible working requests all remain valid;
• whether employers should be required to suggest alternative flexible working arrangements if requests are refused;
• updates to the administrative process underpinning the right to request flexible working; and
• encouraging more requests for temporary flexible working.

The results of our survey into each of these areas make interesting reading:

The right to request flexible working
A majority of 68% think that the statutory right to request flexible working should be available from day one of employment.  24% think that it should not, and the remaining 8% are undecided.  Interestingly, 65% already accept requests from employees that have less than the current statutory requirement of 26 weeks continuous service.

Business reasons for refusing a request
More than half of respondents think that the following business reasons for rejecting requests under the current statutory framework remain sound: extra costs that will be a burden on the business (61%); work cannot be reorganised among other staff (70%); people cannot be recruited to do the work (58%); ability to meet customer demand will be negatively affected (65%); lack of work to do during proposed working times (60%).  Perhaps unsurprisingly in the context of Covid-19, only 39% feel that it is still valid for an employer to say that flexible working will negatively affect quality or performance and only 43% think that an employer should be able to rely on planned structural changes as a reason to refuse a request.

Alternative flexible working arrangements
74% think that employers should be required to show that they have considered alternative arrangements when rejecting a request.  Whilst 26% don’t agree this should be mandatory, those in favour gave the following reasons:

• It would place an obligation on employers to show that they had thoroughly considered the business impact of a request (both positive and negative) and any alternative options, rather than just dismissing it out of hand.
• It would promote transparency and help avoid discrimination, by increasing the chances of decisions being based on sound reasoning.
• It would work to the benefit of both sides to be able to discuss alternatives, with a view to reaching a compromise.

This being said, 44% believe that a prescriptive requirement on employers to set out a single alternative flexible working arrangement and the business ground for rejecting it would be too burdensome (for example, in cases where there was genuinely no suitable alternative available) and may lead to delays in dealing with requests.

Administrative process and temporary requests
57% think that the current statutory framework in respect of timings for responding to a request needs to change.  Whilst some think that the timescale should reduce from the current three- month period right down to one month, others think two months would be more appropriate.  The general theme of the feedback was that a faster initial response may encourage parties to work together more proactively and that the current three-month period feels too long.

60% think that the right to request flexible working should be amended to allow more than one request a year; anywhere from twice a year up to quarterly.  However, 40% believe that no amendment is required and the current regime is appropriate.

Whilst it’s already possible to agree temporary flexible working arrangements under the current statutory regime, the overall feeling is that this is not well-understood and is an area that could be developed, to provide greater scope for approving requests.

Emma Burrows, Partner and Head of Employment said: “Back in 2019, the government’s manifesto firmly committed to encouraging flexible working.  Since then, the pandemic has ushered in wholesale change to working practices and it’s impossible to visualise things going back to the way they were.  The expectations of both employees and employers have shifted and agile working has now become a vital tool in attracting and retaining the best talent.  So, whilst it remains to be seen what the government will say in response to the consultation, it appears from our survey that employers are already a few steps ahead and changes to the statutory regime would be welcome.”

*Survey by Trowers & Hamlins