If ever a government consultation was overtaken by events, it is this week’s offering on Making Flexible Working the Default. For many employers this is now pushing at a door which is not just open but blown clean off its hinges by the pandemic and the WFH experience of the last 18 months.

The Consultation document represents an early failure by the government under the surely-imminent Coronavirus (Prevention of Irritating Clichés) Regulations 2021 – someone has weeded out most of the “unprecedenteds” and “new normals”, but there are still seven of Boris’s “build back betters” in the first 11 pages alone, and the usual repetition of chunks of the Foreword (“freeing employees and employers….from the default 9 to 5 model in order to recruit and retain the talent we need“) in the Introduction (“an opportunity for employers and employees to free themselves from the default 9 to 5 in order to recruit and retain the talent that we need…”).

However, once we finally get to the end of the cut-and-paste Intro, we see the specific questions which are up for grabs in this Consultation:

1. Should the right to request flexible working apply from Day 1 or only after 26 weeks, as at present?

No decisions have yet been made on this, it says here, but in reality the Consultation makes it very obvious that the government would go for Day 1 every time. It may prod employers into considering the potential for flexible working in initial job design, the Consultation notes hopefully, adding (to the no doubt rank incredulity of many employers) that a post-implementation review of the original 2014 Flexible Working Regulations had found no evidence of any unreasonable costs burden on them resulting from the administration or accommodation of flexible working requests.

The obvious downside to this proposal is that at the time that Day 1 request is made, possibly the employer and certainly the new employee will have no actual experience of how the job works, the demands it imposes or the capabilities of the employee. As a result, assessing its compatibility with the flexible working arrangements requested may as well be done blindfold. It is not impossible to expect that some new joiners will make assumptions about their success in this which will be disappointed, so creating a more than reasonable chance of getting an introductory smack in the chops from your employer at an even earlier stage than usual.

The government says that the right to flexible working should not have to be “earned” by a particular length of service. [Why not? – see your unfair dismissal and statutory redundancy pay rights]. Even if that is right, however, a Day 1 entitlement would mean that the discussion which everyone agrees should follow such a request could often be substantially uninformed, the worst possible basis on which to make these decisions.

2. Should the current eight business reasons for rejecting a flexible working request be changed?

There is clearly no interest on the government’s part in fiddling with existing reasons so we can expect these to remain fundamentally unaltered. Apparently only 9% of statutory requests are rejected, so the existing grounds are hardly acting as an unnecessary blocker to flexible working arrangements.

3. Should an employer rejecting a request be required to explore alternatives?

Many employers do already discuss alternatives or compromises with employees because it helps rebut any parallel allegations of indirect sex or disability discrimination when the request is denied. The government wants to encourage that consideration by requiring employers to set out in such cases “that alternatives have been considered“. By itself this is worse than useless, in that a one-sentence statement to that effect would be entirely compliant even though it said nothing about which alternatives or whether the rejection of them was reasonable. Perhaps that is why the Consultation’s question around the extra time this would take an employer asks for an estimate in minutes.

If the government wishes to impose a duty to consider alternatives then it should simply say so in terms, perhaps lifting the “with a view to agreement” wording out of the collective consultation rules. But then you generate a whole new galaxy of satellite litigation around the exact quality and open-mindedness of that consideration and no-one wants that. In the end, it may be better just to leave this one alone, particularly since there is nothing in the Consultation which even suggests, let alone evidences, that employers regularly ignore viable alternatives suggested by their employees.

4. Reviewing the applicable administrative processes

There are two questions here – should you be allowed to make a statutory flexible working request more than once a year and should the employer have to complete the process within less time than the current three months?

As to the first, it is impossible to disagree that people’s personal circumstances can change such that the need to vary their working arrangements may arise more than once in 12 months. However, there is nothing in the existing law which prevents an employee requesting flexible working at any time, for any reason and however long it is since the last one. Nor is there anything in the Consultation to suggest that the average employer is somehow more willing to consider statutory requests than those made outside that framework. Without that evidence is it hard to see that this change is of any real value – all it does is increase the scope for legal challenge around requests which are seemingly no more or less likely to be granted if made without that statutory backing.

The Consultation avoids any steer on whether the three month time limit is too long. In my view it probably is. If it genuinely takes a quarter of a year to decide whether a particular arrangement is going to work, it probably isn’t. Similarly, if it takes an employer that long to find evidence that one of the eight statutory reasons applies, it probably doesn’t. If we work on the basis that some circumstances and changes leading to a flexible working request are of immediate effect, a decision up to three months later is neither use nor ornament.

If discussions between employee and employer seem to be progressing to the satisfaction of both, then there would be nothing preventing an agreement to continue them. But a measure aimed at encouraging flexible working should surely recognise that a prospective three month delay before you get an answer will have exactly the opposite effect.

5. Encouraging requests for temporary arrangements

Well yes, obviously. The existing rules already fully permit this but the government feels that right to be under-utilised. It does not go so far as explaining why it thinks that or suggesting that too many such requests are refused or indeed actually rehearsing any ideas at all by way of the encouragement of such requests, so anything you can contribute to that debate would no doubt be gratefully received (the Consultation closes on 1 December this year).

Of course, the big problem with all of this is that the balance of power in many flexible working requests has now changed, potentially irreversibly. The Consultation includes a lot of very sweet (not to say, naïve) comment about the proposed new measures being needed to change employers’ attitudes to flexible working, but that ship has long sailed. New attitudes to flexible working are being forced upon them by employees who have operated flexibly for the last 18 months and see no reason to change that. Whatever other changes arise from this Consultation, permissible reasons to reject flexible working requests are not going to include “because then all the rest will want it”, “we never did it in my day” or “I paid a lot of money for these offices and want to see someone in them”.

Employment Law Worldview