BLOG
Why the proposed changes to flexible working won’t make much practical difference
As businesses finalise their return to work plans, the government is preparing to consult on the future of flexible working.
Under new proposals, employees could soon be given the right to request flexible working from day one of employment. The current right to request flexible working arrangements after six months has been in place since 2014 but hasn’t had the impact many campaigners hoped for, with TUC research revealing that even in 2019, flexi-time was unavailable to over half (58%) of the UK workforce.
The plans, which were part of the Conservative party’s manifesto, could also force employers to respond to requests for flexible working more quickly than the current maximum of three months, as well as explain why any requests were refused.
The proposals will be welcome news to many employees, particularly those who begrudge being brought back into the office. And with more than two thirds (71%) of employers reporting that the increase in homeworking has either boosted or made no difference to productivity, changes to make flexible working the default seem to make sense.
But will the proposals actually make any tangible difference to how requests are dealt with, or who’s in the driving seat? From a legal point of view, possibly not.
Not the sea change employees might expect
While the headlines seem to suggest that employers will soon be forced to accommodate demands for to flexible working, in reality, the proposed changes won’t make much practical difference.
The problem is that the flexible working regime doesn’t have any teeth. Requests can be turned down for any one of eight specified reasons, and if an employee isn’t happy with the employer’s decision, recourse under flexible working legislation is limited.
While they may be able to take their employer to a Tribunal for not dealing with a request in time, turning it down for reasons outside of the eight prescribed in the legislation, or not dealing with the application in a reasonable manner, if the employer has done all of that but the employee is simply dissatisfied with the outcome, there’s little they can do except follow the company’s procedures for appealing.
Even if an employee’s claim is successful, the maximum penalty is only eight weeks’ pay, so the financial risks at relatively low and arguably not enough to dissuade employers from rejecting a request if they are intent on doing so.
None of this will change with the government’s proposal, which simply eliminates the need to wait six months from staring a job to make an application – a very minor amendment. If the government really wanted to champion flexible working, it could require employers to justify their refusal and, if they can’t, increase the penalty for having denied the request. However, that isn’t on the table.
Related Content
Do you need support?
Speak to us for an honest, no obligation chat on:
0345 226 8393 Lines are open 9am – 5pm
The real issue: indirect sex discrimination
While rejecting an employee’s flexible working request is relatively low-risk, and the proposals do little to change that, employers must still be mindful of indirect sex discrimination arguments that may stem from this.
In a nutshell, more women than men need to amend their working pattern to fit their caring responsibilities, so any refusal to allow flexible working is much more likely to adversely impact female employees.
Such claims can be substantial. In fact, you may have heard about the recent case involving an estate agent who was awarded £185,000 in damages after her request to leave work earlier to collect her daughter from nursery was denied. This was an indirect sex discrimination claim, not any claim under the flexible working regime, highlighting that it is in fact these sorts of issues that pose the biggest threat to employers.
So, will it be more difficult to reject a request?
As well as having to respond to requests more quickly, the government’s proposals would also force firms to explain why any requests were refused. With the pandemic presenting employees with the perfect opportunity to prove that they can work just as productively from home, some legal professionals are suggesting it will now be more challenging for employers to deny flexible working requests.
However, from a strictly legal perspective, the same rules will still apply. Men or women who make a request for reasons other than childcare – or some other protected characteristic – have virtually no recourse.
What’s more, if a contract specifies a place of work, employers have every right to insist that an employee returns to it. They will be simply enforcing the terms of the contract and could discipline anyone refusing to comply.
All of that said, denying flexible working requests isn’t just a legal issue – it’s an employee relations issue as well. While the law hasn’t changed, what has changed is the job market. With a growing number of employers now embracing flexible or hybrid working, if you’re not prepared to accommodate employees’ wishes, there’s every chance they may find another employer who will.
Got questions or concerns about flexible working?
Flexible working can take many different forms: part-time working, term-time working, job sharing, compressed hours, annualised hours, flexitime and – most relevant right now – remote working or a ‘hybrid’ approach.
Whatever your situation, and whatever type of flexible working you are exploring, our Employment Law and HR and Health & Safety specialists can help you navigate the process, prevent legal missteps, and preserve productivity and engagement wherever your people are based.
For advice and support, call 0345 226 8393 or request your free consultation using the button below.
Sign up for the latest news & insights
Resources
Latest News & Insights
Employment Tribunal time limits | How Labour’s plan to double the claims window could impact employers
BLOG Written by Katie Proctor on 14 May 2025 At present, employees have three months to bring the majority of claims to the Employment Tribunal.
Home working vs. remote working | Understanding the difference and why it matters
BLOG Written by Tracey Burke on 13 May 2025 In today’s flexible working world, the terms home working and remote working are often used interchangeably.
From strain to strategy | HR solutions for charities facing financial uncertainty
BLOG Written by Jo Chambers and Annabelle Carey on 12 May 2025 As we enter 2025, the charity sector faces a perfect storm of rising
Third-party harassment | The return of employer liability under the Employment Rights Bill
BLOG Written by Suzie Green on 30 April 2025 In October 2024, the UK government introduced the Employment Rights Bill – a significant piece of
Safe outdoor classrooms | 5 risk assessment tips for school leaders
BLOG Written by Maria Leonard on 29 April 2025 With Outdoor Classroom Day returning on 8 May and 6 November 2025, many schools will once
The future of flexible working | Recent changes and what’s coming next
BLOG Written by Louise Harvey on 25 April 2025 Since the COVID-19 pandemic reshaped the world of work, flexible working has quickly become a vital
Recruiting and managing apprentices | 5 things employers need to know
BLOG Written by Caroline Johnstone on 22 April 2025 Apprenticeships offer a valuable opportunity for employers to develop homegrown talent, enhance employee loyalty, and cultivate
7 reasons to have an Applicant Tracking System – and how it makes hiring easier
BLOG Written by Danielle Fargnoli-Read on 15 April 2025 Let’s be honest – hiring can get messy. Between flooded inboxes, scattered CVs and application forms,
Fire and rehire reform | New rules, narrow exceptions, and what to do now
BLOG Written by Stuart Watkins on 9 April 2025 Of the many changes contained in Labour’s Employment Rights Bill (ERB), one of the most significant