The Government issued its BIS "Modern Workplaces Consultation" on 16 May 2011. One of the topics covered is "Flexible Working". Consultation closes on 8 August 2011.

The paper gives examples (with explanations) of "flexible work" as follows: part-time; flexi-time; compressed hours; homeworking; annualised hours; term-time working; structured time off in lieu; job-sharing; and varied-hours working / time banking.

The right to have an employee’s request for flexible working taken seriously by employers was introduced in April 2003 for parents of children under six years old, or under 18 if the child has a disability. The employee must have been employed by the employer for at least 26 weeks. The right was extended to certain carers in 2007 and further extended to parents of all children under 17 in 2009. Plans, as an interim measure, to raise the child age limit from 17 to 18 with effect from 6 April 2011 were dropped in February 2011.

As previously announced (see for example Hansard, 29 November 2010) the Coalition Government proposes that the statutory right to request flexible working should be extended to all employees. The current focus on parents and carers is to be removed. However the requirement that the employee should have completed 26 weeks’ employment with the employer will be retained.

The introduction to the part of the consultation which covers "Flexible working" explains that it sets out "proposals to implement the Coalition Agreement commitment to extend the right to request flexible working to all employees". The introduction goes on to say that "We want to stimulate cultural change to make flexible working practices the norm, which we know will require more than just legislation. We will therefore also be developing non-legislative measures to promote flexible working opportunities both for those with a job and for those looking for one".

The right will remain a right to request (not to demand). To reduce administrative burdens on employers, the consultation suggests that the statutory process for considering requests should be removed and replaced with a new duty on employers to consider requests "reasonably", backed by a statutory Code of Practice to clarify what is "reasonable". As the consultation says there will be no change to the eight statutory grounds for refusing a request (set out in the Employment Rights Act 1996 s.80G), it is not very clear what a Code of Practice can add. It may however help if an employer has to choose between competing requests as the proposal is that they should then be allowed to take account of any factors they consider relevant.

The Government recently announced that businesses with fewer than ten employees will be exempt from new domestic regulations until 2014. Subject to any EU requirements, this moratorium will cover the proposed new rules.

Employers who are considering rejecting an employee’s request for flexible working arrangements are strongly advised to contact us. If they reject a request out of hand there is a risk that the employee may resign and claim constructive unfair dismissal. This happened last year, for example, in a case involving a hotel in Newcastle, leading to a tribunal award of over £10,000 to the employee concerned.