The Department for Transport also recently asked businesses for their views on alternative methods of working that reduce the need for commuting and business trips. This issue is clearly on the Government's agenda.
Employees with 26 weeks' service who have parental responsibility for a child under 17 years old - or under 18 if the child is disabled - have the right to request to work flexibly. Carers of certain adults also have the right to make a request. Employers must follow a statutory process to consider an employee's formal request.
A key part of the Government's proposal is that all employees with 26 weeks' service, not just certain groups, will have the right to make a request to work flexibly.
The Government has recognised that the current statutory process is burdensome and overly prescriptive, with multiple stages. As a result, employers may find themselves facing tribunal claims as a result of a purely technical breach of the law. The Government therefore proposes introducing an overall duty to consider requests 'reasonably', which will be accompanied by a new, statutory, code of practice. Consultation on the detail of a code of practice will take place in due course, although it is proposed that the eight business reasons under which an employer may refuse a request - eg the burden of additional costs and detrimental effect on quality - should remain.
There has been some consideration whether employers should be given guidance where more than one employee makes a request and both cannot be accommodated. There is no plan to introduce a formal prioritisation list, but employers would be allowed, though not compelled, to take into account other factors they consider relevant to choose between conflicting requests (eg if an employee had caring responsibilities).
Confusingly, in order to rely on such prioritisation, it is proposed that employers would need to show first all the requests could not be granted for business reasons and only then allow one request to precede the other. We at Olswang suggest employers watch for further details of how this would operate in practice.
At present, employees may only make one request to work flexibly in any 12-month period. It is proposed that employees may be able to make an additional flexible working request within any 12-month period if they state in the original request that the change will last for less than a year. While this will potentially be more administratively onerous for employers, it recognises the fact there may be situations where employees would like to ask for short-term change, for example, if there has been a bereavement, or to undertake charity work.
While there is a commitment to bring in legislation during this parliamentary session, it is unclear when the new law would take effect.
The clear message from the Government's consultation is it is hoping to stimulate cultural change in attitudes to flexible working. While it acknowledges the limitations that changing law alone can make, it is clearly something it takes seriously. To this end, it has established a working group, and has plans to involve Jobcentre Plus and to work closely with private sector recruitment agencies.
The consultation closes on 8 August 2011.
Daniel Aherne is a partner and Joanna Adams is an associate at law firm Olswang