On Monday this week the Government issued its response to its 2021 consultation on the flexible working regime. We wrote about some of the original proposals here. Some didn’t make the cut, so we are left with five key points for employers.
First, the easy and sensible conclusion that the current list of eight acceptable business reasons for rejecting a flexible working application should be left alone. Also on the no-sweat pile, a reduction in the timetable for dealing with a request from three months to two. If it takes you three months to identify a reason for saying no, you probably haven’t got one.
Allowing two statutory working applications to be made per year instead of the previous one. This will notionally allow the employee slightly greater ability to respond to changes in their own circumstances warranting such a request, but in reality will probably have little impact — people make flexible working requests when they need to, not because another year has come round.
Next, employers will be required to consult with employees to explore the options available before rejecting a flexible working request. This is almost invariable practice already. The cumbersomely-titled ACAS Code of Practice on handling in a reasonable manner requests to work flexibly” published in 2014 states that “if your employee has the right to make a flexible working request, it’s important to . . . consider the request fairly; discuss it with your employee; look at other options if the request is not possible”. It then reminds the reader quite sharply that if a flexible working case reaches the Employment Tribunal, the Judge will take into consideration whether the employer followed those provisions. It is, the Code says proudly of itself, “the minimum you must follow”.
So in practical terms, no real change. What remains unclear is what the sanction will be for a failure to consult under the new rules — is it an uplift in compensation akin to the 25 per cent for breach of the main ACAS Code on Disciplinary and Grievance procedures, or some free-standing poke in the eye related to the existing penalty to follow the flexible rules? We do not know either whether the sanction will cut both ways—what if it is the employee who declines to consult in good faith or at all?
Given the position created by the existing ACAS Code and the absence in the original consultation document of any suggestion at all of widespread breach of those principles, this is probably an unnecessary and certainly an unhappy development for employers. It creates considerable scope for satellite litigation around the perceived quality of the consultation process itself, irrespective of the underlying merits of the application—my employer only pretended to consult, it had made up its mind already, it did not take long enough to investigate the myriad unfeasible suggestions I had made, I wasn’t given time to prepare, my employer disagreed with me and so must by definition have failed to consult properly, etc. Particularly coupled with the increased scope for litigation at an early stage in the relationship (see below), this is clearly a retrograde step.
However, while we are on the subject of the unnecessary and the unhappy, make way for the other two changes heralded by the Government’s response, both of which represent significant steps backwards in terms of the effective operation of the flexible working regime. And backwards not just for employers, that is, but also for the employees these changes were designed to assist.
First, the removal of the obligation on the employee to set out in his request how the effects of his flexible working application, if granted, could be dealt with by the employer. Why? There was nothing in the original consultation document which indicated a need for this, no suggestion that valid requests were not being made because employees could not see how they could be accommodated. It is not as if the existing requirement entails any particularly detailed or forensic submission by the employee, or even anything even remotely viable on the facts—nothing in the current flexible working rules invalidates an application merely because the employee’s views of how the request could be made to work are unrealistic or based on a factual error.
However, what the existing rules do, and the new ones will not, is make the employee give some prior thought, however sketchy, to the objective reasonableness of what he is asking for. Since the new rules will not alter the grounds on which such request can be rejected (i.e., based entirely on the employer’s perspective), it seems perverse not to require the employee to think about that at the start. Instead he can focus entirely about his own reasons for wanting flexible working, almost none of which should properly play any part in the employer’s ultimate decision anyway. This also sits particularly uncomfortably with the reinforced obligation to consult with the employee — he is going to have to deal with any difficulties and concerns the employer may have pretty much first thing anyway, but without the element of understanding or realism which might have been gained from his having to think about them first.
But by far and away the least sensible of the changes intended is the decision to make the right to request flexible working applicable from Day One, i.e., to remove the 26 week qualifying service currently required. This means of course that an employee who knows next to nothing about how his job operates at that employer can set off a long chain of legal obligations on the employer, itself still unaware of the employee’s capabilities, perhaps in relation to a new role of which it has no experience either. That may throw the parties into almost immediate confrontation, with either one or both largely in the dark about how the changes requested would work in practice. It opens the door to, if not Day One then certainly Month One, grievances and time off “sick” for those who banked on being allowed to work flexibly (perhaps an easy assumption if you have no experience of doing that job for that employer and no obligation even to think about it), but then aren’t.
In addition, keep in mind sections 47E and 104C Employment Rights Act, the prohibitions on detriment or dismissal for making a flexible working application. These will presumably now also apply from Day One. All the employee needs to do is make a flexible working request at the very start of his employment, whether or not remotely viable (the ERA does not recognise the concept of an unreasonable or bad-faith flexible working application). Thereafter he can allege that request to be the motive for any action the employer then takes to extend his probation, warn him or call it quits altogether. That places a burden on the employer to substantiate its chosen reason which is scarcely there at present. The current six-month service requirement at least gives both parties the length of most probationary periods to see what’s what before wading into contract variations, but now that breathing space will be lost.