In its 2019 election manifesto, the Conservative party promised to “encourage flexible working and consult on making it the default unless employers have good reasons not to" and “extend the entitlement to leave for unpaid carers […] to one week”. 

Keeping to those commitments, the government has today announced that it will introduce a “day one” right to carer’s leave in response to a 2020 consultation on carer’s leave and it has launched a Making Flexible Working the Default consultation, which:

• sets out various proposals to reshape the current flexible working framework;
• covers various steps that the government is taking to encourage and support flexible working; and
• responds to relevant proposals from the 2019 Good Work Plan: Proposals to Support Families consultation.
  

We have summarised the details below.

Making Flexible Working the Default consultation

Proposals to reshape the current flexible working framework:

• Removing the 26 week qualifying period and making the right to request flexible working a “day one” right – meaning an employee would be able to make a statutory request to work flexibly from their first day in a new job. The intention behind this proposal is to bring more employees within the scope of the legislation and encourage employers to consider flexible working options early in the job design/recruitment process.

• Whether the eight business reasons for refusing a flexible working request remain valid – according to the consultation paper, only 9% of statutory flexible working requests are rejected and the government therefore does not see a case for fundamentally changing the existing business reasons because they do not present a disproportionate barrier to flexible working.

• Requiring the employer to suggest alternatives – at present, employers can simply refuse a flexible working request and provide the applicable business reason(s) why the request cannot be accommodated. The consultation therefore seeks to explore whether it should be a legislative requirement for employers to set out, when refusing a request, what alternatives have been considered.

• The administrative process underpinning the right to request flexible working – views are sought on whether (a) the limit to one flexible working request every 12 months restricts access to flexible working, creating an unnecessary barrier; and (b) the three month timeframe for an employer to consider and respond to a request remains the correct timeframe.

• Requesting a temporary flexible arrangement – the consultation paper indicates that the right to request a flexible working arrangement on a defined, time-limited basis under the current framework is under-utilised by employees and therefore asks what might help encourage employees to utilise this provision.

Steps that the government is taking to encourage and support flexible working - these include:

• inviting a Flexible Working Taskforce to consider the “location” aspect of flexible working, namely the practical and legal issues associated with a return to the workplace following the pandemic and changes in working practices, with a particular focus on hybrid working; and
• a separate call for evidence to explore “extra” flexibility and the need for “ad hoc” and informal flexibility for people both at work and at home, and how that can best be supported. The consultation paper invites suggestions for the issues that could be considered as part of this future call for evidence.

Response to relevant proposals from the 2019 Good Work Plan: Proposals to Support Families consultation: the consultation paper sets out how the government is taking forward the 2019 consultation, which you may remember involved measures to promote greater transparency of flexible working and family related leave and pay policies, and whether employers should say if jobs may be open to flexible working in the relevant advert. The government confirms that:

• it will not introduce a legislative requirement for employers to publish a flexible working statement or policy;
• now is not the right time to introduce a legal requirement for employers to state in job adverts whether flexible working is available – given that a “day one” flexible working right could lead to flexible advertising becoming the norm amongst organisations; and
• it is due to review the impact of the Gender Pay Gap Reporting Regulations in 2022 and will consider the publishing of and reporting on parental leave and pay policies as part of that review.

Whilst the government has kept to its manifesto promise of launching a consultation on the topic of flexible working, there is no actual proposal for employees to have an automatic or “default” right to work flexibly. Therefore, ultimately, the existing framework is unlikely to drastically change – employees will still only have a “right to ask” to work flexibly, and employers will retain their right to refuse requests on certain grounds.

Next steps: The consultation closes on 1 December 2021.

Carer’s leave – response to 2020 consultation 

Today, the government also published its response to a 2020 consultation on carer’s leave and has confirmed that it intends to introduce a “day one” statutory employment right to carer’s leave. In summary:

• employees will be entitled to one week (five working days) of unpaid leave per year;
• the leave may be used for providing care or making arrangements for the provision of care for a dependant who requires long-term care;
• employees may take the leave flexibly, either in individual or half days, up to a block of one week;
• notice must be given ahead of taking leave;
• employers will be able to postpone, but not deny, the request for leave and they may only postpone in circumstances where the operation of the business would be unduly disrupted; and
• employees taking carer’s leave will be protected from detriment and dismissals for reasons connected with exercising the right will be automatically unfair.

Legislation to introduce this new statutory employment right will be introduced when Parliamentary time allows.

If you wish to discuss hybrid or flexible working or introducing carer’s leave within your organisation, please contact your usual member of our team.