Flexible working
New right to request flexi-working from day one and new National Minimum Wage, benefits and pensions rates announced
It’s been around a while. Back in 2003, legislation provided employed parents and certain other carers with 26 weeks continuous service with a right to request a flexible working arrangement. In 2014, the right to request flexible working was extended to all employees with 26 weeks continuous service, which is where we are today.
The 2019 Conservative Party manifesto committed to:
“encourage flexible working and consult on making flexible working the default unless employers have good reasons not to”.
The current position is, in my view, fairly restrictive, in that workers must have the 26 weeks service to make a request and only one request can be made in a 12 month period. Many of my clients actually offer flexible working requests from day one of employment. Why make an employee wait for six months to ask a question?
Furthermore, limiting the right to just one request per year can be particularly unfair. In that time much can happen, circumstances can change. I accept that it would be unworkable to have a continuous stream of flexible working requests from one person and a limit of sorts should be placed on the number of request made in a given period.
But what I find particularly odd is that the employee, when making the flexible working request, should set out the business case for the new working pattern.
Surely, the employer will know what the impact of the change will be when they consider the request and whether it can be granted or not. Why should an employee be tasked with such an exercise? If you’ve just had a baby and want to change your working pattern, the last thing you should be doing is analysing how the change will affect where you work. It’s quite nonsensical, and not only that, is an employer really that interested in your analysis? I’m sure they can make their own minds up without prompting from staff.
Currently there are eight legitimate business reasons an employer can give when refusing a flexi-working request. They are:
extra costs that will be a burden on the business
the work cannot be reorganised among other staff
people cannot be recruited to do the work
flexible working will negatively affect quality
flexible working will negatively affect performance
the business’ ability to meet customer demand will be negatively affected
there is a lack of work to do during the proposed working times
the business is planning structural changes.
So we have eight get out of jail free cards an employer can rely on, and frankly, if they can’t find one to fit they’re missing a trick!
It’s just too easy to find a reason to refuse a flexible working request.
But that is now set to change. Following a public consultation in 2021 the government has now published its response and it’s fairly encouraging. The response states:
“That is why, rather than telling people and organisations how to work, we put individual agency and choice at the heart of the proposals. It is right that the system is based on employers and workers having constructive, open-minded conversations about flexible working to find arrangements that work for both sides.”
Following the consultation, the Government will:
Make the right to request flexible working apply from the first day of employment, through secondary legislation.
The Government will also take forward the following measures, which require primary legislation:1
1. Requiring employers to consult with their employees, as a means of exploring the available options, before rejecting their flexible request;
2. Allowing employees to make two flexible working requests in any 12-month period and requiring employers to respond to requests within two months; and
3. Removing the requirement for employees to set out how the effects of their flexible working request might be dealt with by the employer.
There is currently a Private Member’s Bill2 passing through Parliament which covers the points above. It has had its second reading and hopefully will become law in due course.
One point worth noting is that the list of eight reasons for refusing a flexi-working request will be retained, so an employer will have ample scope for refusal. That being said, flexible working is becoming far more popular and workers are now actively seeking jobs that offer flexibility. Whilst the job market is currently very tight, employers would be minded to offer and consider flexibility to attract and retain the most suitable staff.
New National Minimum Wage rates have been announced.
As of April 2023 they will be:
The government has also published its Benefits and Pension rates from 2023 to 2024, covering everything from Attendance Allowance to Widow’s Benefit. To see the full list click here.
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Secondly legislation can be implemented by a minister through a Statutory Instrument, whilst primary legislation requires an Act of Parliament.