The Government has made clear for some time its intention to extend the right to request flexible working to most employees rather than just those who having caring responsibilities.

In September 2010 the Department for Business Innovation and Skills announced an intention to extend flexible working rights to all parents of children under 18 from April 2011 (covering a further 300,000 employees) and plans to roll out the rights to all employees. Extension of the rights would be accompanied with a new and simplified system for requesting parental leave.

However the April 2011 change was postponed. The reason given by the Government was the economic climate but it was made clear that the widening of entitlement remained firmly on its agenda (in accordance with the Coalition Agreement).

As reported in our June newsletter the Government, as part of its Modern Workplaces consultation, requested submissions from interested parties and the consultation closed last month. As might be expected the views expressed were mixed.

The Government has pledged not to extend so-called “red tape” for small businesses. The consultation asked whether the extension of rights should be excluded for start-ups and businesses with fewer than 10 employees in accordance with the moratorium on business regulation affecting such businesses. The Chartered Institute of Personnel and Development has pointed out that this might operate as a barrier to business expansion.

As for the simplification or streamlining of the request process (depending on how you look at it) the TUC is predictably opposed to such changes. Brendan Barber, TUC general secretary stated:

Weakening the right to request flexible working will give bad employers the wrong message and is the excuse they’ve been looking for to ignore requests. The Government should remember how successful and popular this right has been for parents over the last decade and put their needs ahead of the same old carping from business lobbyists.

Equally predictably the British Chambers of Commerce has reported that two-thirds of business owners expect extension of the rights to be detrimental to their businesses. However, it is notable that one-third do not. Former director general David Frost emphasises that the objection is to the need for regulation rather than increased rights:

Flexible working is already a reality in the UK business community. If conversations are already taking place in the workplace, and most requests for flexible working are already accepted, additional regulation around this is entirely unnecessary.

This week is National Work-Life Week, organised by lobbying group Working Families. Their chief executive, Sarah Jackson, has commented on the consultation as follows:

Far from costing the earth, the simple extension of flexible working rights to all employees could bring real benefits to families and to business. The consultation paper suggests the extension of the right to request flexible working will lead to an estimated £222.5 million net benefit to employers: this figure should be widely publicised. It may help reassure the many businesses who don’t yet recognise the benefits of flexible working. Employees’ wellbeing is improved, but so is the employer’s bottom line. Flexible working can reduce the costs of absenteeism and stress, decrease recruitment and retention costs, and increase performance. This is one employment law reform that the UK can’t afford to delay.

Details of the Government’s response to the consultation are now emerging. It remains settled policy to extend the right to request flexible working to all employees once they have been employed for 26 weeks. The “complex” step by step procedure which is currently in use will be replaced by a duty to consider requests “reasonably”, backed up by a new Code of Practice. Employers will be allowed to take into account individual employees’ circumstances and, contrary to the current Regulations, requests can be made more than once in any 12 month period, thereby allowing time for time limited requirements, such as caring for a terminally ill relative.

No doubt these changes will be presented as a lightening of regulation, while at the same time providing a huge extension to those entitled to request flexible working. Another concern for employers will be the extent to which less prescribed processing of requests combined with the extension of entitlement to the entire workforce will lead to more discrimination claims. Prudent employers will keep full records and ensure that a consistent approach is applied in all cases, even if not required by Regulations.

There is still no formal announcement concerning when the extension of rights will be implemented. The original announcement in 2010 envisaged that all employees would become entitled in 2012 and, taking into account the timing of the consultation, it’s reasonable to assume that, notwithstanding the omission of partial extension in April 2011, that remains the case