In brief

The government has published its response to the “Making flexible working the default” consultation that it ran last year, confirming that it will make the right to request flexible working a day one right.  

Key takeaways 

What is changing? 

• The right to request flexible working will be available from day one of employment, removing the current 26 weeks’ continuous service qualifying period.
• The employer must consult with an employee making a flexible working request to explore the available options before rejecting their request.
• An employee will be able to make up to two flexible working requests within a 12-month period (currently employees can only make one request within a 12-month period) and employers will need to respond to the request within 2 months (currently 3 months).
• There will no longer be a requirement on the employee to set out in their application how their employer might deal with the effects of their flexible working request as it is expected that this will be discussed during consultation.

What is not changing? 

• The right remains purely a right to request; there is no entitlement to be granted flexible working. Nevertheless, employers should recall that a blanket refusal on accepting any flexible working pattern might, in some circumstances, be indirectly discriminatory unless it can be objectively justified – for example, a requirement to work full time may be indirectly discriminatory against women with childcare responsibilities, and a requirement to work in the office could potentially be indirectly discriminatory against disabled employees if their health condition makes the commute more difficult.
• An employer who refuses a flexible working request will still need to give one of the eight statutory business reasons for refusing the request.

Next steps 

• The government will enact legislation to put the changes into effect when Parliamentary time allows and will support the Private Member’s Bill “Employment Relations (Flexible Working) Bill” as it progresses through Parliament
• Enhanced guidance will be developed to raise awareness and understanding of how to make and administer temporary requests for flexible working
• A Call for Evidence will be launched to better understand how informal or ad hoc flexible working is carried out in practice

See for more information: Making flexible working the default: government response to consultation

For advice or to discuss what this means for you and your business, please contact your usual Baker McKenzie contact.