The Department for Business, Education & Industrial Strategy has published a response to its 2021 consultation on flexible working which followed widespread change to working practices post-pandemic.

The response is broadly positive about the role flexible working plays and makes the following key suggestions for change:

1. The right to request flexible working will become a day one right for all employees.

Currently employees must have 26 weeks’ service in order to make a flexible working request but 91% of respondents were in favour of changing this. However, it still only remains a right to make a request for flexible working and is not a right to work flexibly from day one, as the consultation found there is "no one size fits all approach to work arrangements".

2. Employers will have to consult with employees to look at alternative options before declining a flexible working request.

It's unclear how this will work in practice but it will bring legislation in line with the ACAS Code of Practice.

3. Employees will be permitted to make two flexible working requests in any 12-month period, as opposed to one.

4. Employers will have to respond to flexible working requests within two months, not three. 

5. Employees will not be required to set out the anticipated effects of their flexible working request on the employer or to provide suggestions as to how the request should be handled.

The consultation revealed that this requirement was generally thought to place an unnecessary burden on employees so it has been removed. It would also not fit with the new right to request flexible working from day one – it would be impossible for new employees to attempt to describe the effects of their request at the start of their employment when they will be unfamiliar with the employer’s working practices.

The government has also committed to implement guidance for employers and employees on how to make and administer temporary requests for flexible working.

However, despite some calls for the government to also reduce the number of statutory reasons for refusing a flexible working request, the government has said that it will keep the existing list on the basis that the consultation didn’t reveal a conclusive way forward. 

The permitted statutory reasons for refusing a flexible working request will therefore remain as follows:

1. extra costs that will damage the business
2. the business will not be able to meet customer demand
3. the work cannot be reorganised among other staff
4. people cannot be recruited to do the work
5. flexible working will affect quality and performance
6. there’s a lack of work to do during the proposed working times
7. the business is planning changes to the workforce

The government has not set out a time frame for making the above changes but we may be waiting a while; most of the changes will require new primary/secondary legislation to be enacted or more evidence gathered before they can be fully implemented. However, the proposed changes show a generally positive shift in attitudes towards flexible working.