Gwenan White | Trainee Solicitor

The Right to Request Flexible Working: A Day One Right?

At present, employees with at least 26 weeks’ continuous service can make a request for flexible working under the statutory scheme for any reason.

For a number of years, there has been discussion surrounding making this right a ‘Day One’ right. The Conservative Party first referred to it in their manifesto in 2019, stating that they encouraged flexible working and would consult on making it the default position for employers. The Government reiterated this position in the Queen’s Speech in December 2019, when setting out its intention to create a new Employment Bill which would contain the right for flexible working to be the default position. However, this Bill has not been put before Parliament yet. The Government subsequently published its consultation, ‘Making Flexible Working the Default’ in 2021.

We have now received the Government’s Response to the consultation. The consultation received over 1,600 responses. Overall, it is clear that the respondents recognised the importance of flexible working. The Government has vowed to take forward a number of the proposed changes.

Of particular note, a significant 91% of respondents said that the right to request flexible working should become a day one right for employees. This change, it is thought, will move the perception of the right to flexible working from something to be earned by employees, to a default right for all. It is also suggested that this will avoid disputes occurring 6 months into the employment relationship.

There were concerns raised during the consultation that this would create difficulties for certain sectors, for example education and hospitality, which require employees to work at specific times. However, it was emphasised in the Government’s response that the legislation will remain a right to request flexible working, not the right to have flexible working.

It remains to be seen when the legislation will be introduced to make the right to request flexible working a day one right. Whilst no clear timeframe was given by the Government, the Employment Relations (Flexible Working) Bill is currently making its way through Parliament which seeks to implement other changes to the flexible working scheme, so it would be surprising if the day one right wasn’t introduced at the same time. We may well see the changes introduced sooner rather than later.

Gwenan White

Gwenan White

Dispute Resolution Team

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