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Consultation on changing the right to request flexible working - Guest Article by Ian Holloway

Consultation on changing the right to request flexibly

In July, I wrote how a Private Member’s Bill was introduced to Parliament that would give the statutory right for an employee to work flexibly from the first day of employment.  Currently, the following conditions apply:

  • The employee must have worked continuously for the same employer for 26 weeks before making the application and
  • Not have made a similar application to work flexibly in the previous 12 months

I commented at the time that Private Member’s Bills rarely succeed yet do raise the profile of an issue.  Perhaps that was the case with this Bill given the UK Government’s latest publication entitled ‘Making Flexible Working the Default’.

As HR and payroll are UK-wide professions, it is really important to note that the same UK is actually split into two employment law jurisdictions:

  • Great Britain – where employment contracts are written under the Employment Rights Act 1996, and
  • Northern Ireland – where employment contracts are written under the Employment Rights (Northern Ireland) Order 1996

The two pieces of UK legislation do not say the same thing.  Therefore, different employment rights are conferred as a result.  For example, there is no right to Statutory Bereavement Leave in Northern Ireland, simply because their 1996 Order was not updated in line with the Great British 1996 Act.

Although the current right to request flexible working is the same UK-wide, the September 2021 consultation looks set for the employment law jurisdictions to diverge again.  The consultation will result in legislation that will update the Employment Rights Act 1996.  The UK Government has no authority to update the Employment Rights (Northern Ireland) Order 1996 as employment rights have been completely devolved to the Northern Irish Executive.

The Consultation

The consultation seeks view and asks questions on 5 areas:

Making the Right to Request Flexible Working a day one right

Essentially, this section is all to do with making the right to request a statutory right from the first day of employment, thereby removing the length of service criterion.

Whether the eight business reasons for refusing a Request all remain valid

Currently, there are 8 reasons in the 1996 legislation that says an employer can refuse to accept a flexible working request:

  1. It will impose extra costs that will be a burden on the business
  2. Work cannot be reorganised among other staff
  3. People cannot be recruited to do the work
  4. Flexible working will negatively affect quality
  5. Flexible working will negatively affect performance
  6. Flexible working will negatively affect the business’ ability to meet customer demand
  7. There’s a lack of work to do during the proposed working times
  8. The business is planning structural changes

This section considers whether these reason are still valid.

Requiring the employer to suggest alternatives

If rejected for one of the reasons above, this section considers introducing a requirement for employers to show that they have considered other flexible working arrangements such as adjusting the hours or days in the initial request.

The administrative process underpinning the Right to Request Flexible Working

This section considers whether the following are still valid, considering that it is the UK Government’s intention to encourage flexible working:

  1. The once-annually requirement in respect of the employee submitting a request, and
  2. The three-month consideration period for employers

Requesting a temporary arrangement

This section asks whether employers and employees are aware of the current statutory leave arrangements that may encourage flexible working such as family-related leave.  Further, it asks whether flexible working should be made available for time-limited periods such as 3 months, 6 months etc.

Responding

Individuals and HR professionals should take note of this consultation, as responses ‘will be used to inform government thinking’.  In plain speak, this means that people need to express their views, as changes to flexible working rights are on their way in Great Britain.

Responses are due by 01 December 2021 either online (https://beisgovuk.citizenspace.com/lm/flexible-working) or by E-Mail (labourmarketparticipation@beis.gov.uk), responding to the numbered questions.

 

Ian Holloway Image

Ian has been in the payroll profession for over 30 years, processing payrolls from all sectors, large and small. He moved from hands-on exposure in 2011 to become involved in educating the profession. His wide-ranging experience and up-to-date knowledge ensured he was able to impart this information to UK professionals through course material, social media, newsletters and face-to-face presentations.

Today Ian combines both these and is involved with a vital aspect of the payroll environment, that of working with the software that actually does a lot of the hard work for the profession. He is thrilled to be the Head of Legislation and Compliance at Cintra HR and Payroll Services, who constantly demonstrate their commitment to quality and compliant payroll and HR software, support and payroll services.

Ian approaches education and communication very much from the perspective of how this will impact the software, the employer and the worker. So, whilst the legislation is vital, compliance and effective communication are paramount.

Connect with Ian on LinkedIn

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