BEIS consultation on making flexible working the default – Law Society response
The proposals
The Department for Business, Energy & Industrial Strategy (BEIS) asked for views on proposals to reform flexible working regulations (the Flexible Working Regulations 2014).
The proposals also:
- cover the wider work being undertaken by the government to encourage and support flexible working, and
- respond to relevant proposals from the July 2019 consultation: ‘Good Work Plan: Proposals to support families’
Our view
We support the direction the government is going in with these proposals.
We would favour flexible working arrangements being published at the advertisement stage.
Additionally, we propose that the right to request flexible working should be available when a successful candidate is offered a position.
It’s in everyone’s interests that employees (or prospective employees) can talk to their employer about possible flexible working arrangements as soon as they wish to make such a request. If the right was moved to the point of offer, it would encourage people to have conversations when there is the most time to find solutions.
The business reasons that can be used to refuse a flexible working request are outdated. They’re also widely drafted and can be judged subjectively, making it hard to show that a reason given for rejecting a flexible working request was unreasonable.
COVID-19 forced many businesses to adopt flexible working practices. This has given more context within which a business’s reasons can be judged.
Employers and employees have a clearer idea of what flexible working looks like, including how to manage employees working remotely.
Many workplaces now have evidence on how performance and productivity is impacted by flexible working.
The government should consider whether it would be better to have a system that’s more like the objective justification requirements related to equality. The wording of the right to request flexible working could mirror that of the language used in the Equality Act 2010.
For example, an employer can only refuse a request for flexible working if doing so would be a proportionate means of achieving a legitimate aim.
Next steps
The government is analysing the consultation results.
It’s possible that reforms will be included in a new Employment Rights Act.