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Government consultation on flexible working day one right 

Government consultation on flexible working day one right 

The Government published its consultation on flexible working on the 23rd September 2021: “Making flexible working the default” as part of the Conservative Party’s 2019 election manifesto.

Current legislation

Provisions set out in the Employment Rights Act 1996 (ERA) allows for all employees with at least 26 weeks continuous service the right to ask their employer to change their contractual terms and conditions of employment to work flexibly, such as hours, location etc. They can make one statutory request in any 12 month period.

The employer has three months to respond to the employee of the outcome of their request.   If the employer refuses their request, the refusal must be based on one or more of the eight business reasons set out in the ERA:

  1. extra costs that will be a burden on the business
  2. the work cannot be reorganised among other staff
  3. people cannot be recruited to do the work
  4. flexible working will negatively affect quality
  5. flexible working will negatively affect performance
  6. the business’ ability to meet customer demand will be negatively affected
  7. there’s a lack of work to do during the proposed working times
  8. the business is planning structural changes.

The employee may be able to make a complaint to an employment tribunal in certain circumstances.

Proposed legislation

The consultation sets out the following proposals for reshaping the existing regulatory framework so that it better supports the objective of making flexible working the default. The government seeks views on:

  • making the right to request flexible working a day one right
  • whether the eight business reasons for refusing a request all remain valid
  • requiring the employer to suggest alternative arrangements when refusing any request
  • exploring whether employees should be allowed to make more than one statutory request per year and whether employers should be required to consider requests quicker than 3 months response time
  • if employers and employees are aware of the option to request a temporary arrangement

The government will be inviting its Flexible Working Taskforce (a partnership across business groups, trade unions, charities and government departments) to bring expertise and support to businesses in this area. Particularly lessons learnt (good and bad) over the last 18 months as more people start to return to the workplace and as employers respond with new approaches to working.

It will also launch a call for evidence looking at the sorts of “extra” flexibility people may need to help them live their lives in the best way they can, exploring the need for “ad hoc” and informal flexibility, and how this can be best supported.

How does this impact employers?

No changes have been made for now, only a consultation at this stage. It does however indicate that changes are on the way and for employers to be mindful of current and future working arrangements.

The consultation closes on 1 December 2021. See the full consultation on the proposed flexible working reforms at

Please contact Kirsty Henderson, HR Advisor to find out more.


First Published 24 September 2021
Last Updated  24 September 2021

Find out more about Kirsty Henderson

Kirsty Henderson

Kirsty Henderson

Kirsty is a HR Advisor in our HR team

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