Flexible working rights to extend to all workers

Employment Law & HR update - 02/06/2011

In a proposal contained in the government's "Modern Workplaces" consultation paper, published in May, all employees will have the right to request flexible working arrangements from their employer as long as they have worked for the employer for at least 26 weeks.  The proposal will implement a commitment made in the Coalition Agreement of 2010.

Currently, employees who have care responsibilities for children aged under 17, or for disabled children aged up to 18, or for dependant adults may make requests for flexible working.  The proposals will extend the right to all employees, whether or not they have care responsibilities.

A further proposal is to scrap the statutory procedure under which employers must consider such requests, with a requirement that an employer must deal with requests "reasonably" with guidance to be issued by ACAS.

No guidance on prioritising requests

However, the government does not propose to issue any guidance about how employers should prioritise competing requests for flexible working, insisting that there should be no legally-binding "hierarchy" of entitlements but highlighting that employers should avoid unlawful discrimination when dealing with requests.  Employers could find themselves with little to guide them when asked to deal with competing flexibility requests from people with child or elder care responsibilities and others who simply want to carve out more time for recreation.

Possible impact

Although some employers may welcome being freed from the requirements of the statutory procedure for considering flexible working requests, others may miss the certainty of following a procedure that is now well-established.  Deciding whether a "reasonable" procedure was followed always leaves scope for argument in an employment tribunal.  Also, opening up the opportunity of flexible working to all could actually reduce the capacity of employers to accommodate requests from those with care responsibilities. 

The consultation exercise concludes in August, but it remains unclear when any new regulations might be implemented, and whether the government intends to exempt micro-businesses from any changes during the 3 year moratorium on new regulation which became effective in April.