Reforming the Right to Request Flexible Working

Under provisions in the Employment Rights Act 1996 (in Great Britain) and the Employment Rights (Northern Ireland) Order 1996, all employees have the statutory right to request to work flexibly and employers have a duty to consider.  However, this is conditional:

1. The employee must have worked for at least 26 weeks and
2. Only one application can be made in a 12-month period

Note that whilst there is a statutory right to request and a statutory duty for the employer to consider the request, this does not mean that there is a right for the request to be granted.

The 2019 Conservative Party Manifesto pledged ‘We will encourage flexible working and consult on making it the default unless employers have good reasons not to’.  However, no legislation has come about via an Employment Bill.  However, on 28 October 2022, a Private Members’ Bill entitled the Employment Relations (Flexible Working) Bill was debated in the House of Commons where it achieved cross-party support.  In short, given that no legislation came from the UK Government, an individual Member of Parliament (Labour’s Yasmin Quereshi) proposed her own.

If this progresses in the current Parliamentary session, this Private Members’ Bill will amend the Employment Rights Act 1996 that applies in Great Britain.  It will not apply to employees who have an employment contract written under the Northern Irish 1996 Order.  With reference to the two conditions above:

• The 26-week continuous employment rule remains unchanged, however,
• The employee can make 2 applications in any 12-month period as opposed to 1

 

The Bill will make it easier for the employee to make an application, as they will no longer have to explain in their application the effects that flexible working would have on the employer.  Further, rather than the employer just having the duty to consider the application, they will have to consult with the employee before refusing to accept the changing working pattern.  Also, the final decision will have to be given to the employee within 2 months rather than the current 3.

The progress of this Private Members’ Bill will be one to follow, as this will impact employers.  Cross-party support will ensure that this progress is smoother and, possibly, quicker, though the debate made a number of references to small businesses and the potential impacts on these smaller employers who may be less able to accommodate flexible working.

This is an important progression, though not quite in line with a previous intention to make ‘flexible working the default’.  This 2021 consultation has, so far, been unanswered by the UK Government.  Yet, the 2019 Manifesto commitments have been delivered:

• Flexible working will be encouraged (as a result of this Private Members’ Bill)
• Employers will have to discuss and consider their decision with the employee before refusing (not quite making it a default but progression towards it) and
• There has been a consultation (regardless of the fact no response has been given)

 

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.

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.