Show notes
Our employment experts Ian Pace and Rebecca Cairney consider flexible working — what we mean by this, what the law currently is and what the new proposals are, as well as potential impact for you and your business.
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Transcript
Ian Pace: Hi there and welcome to the employment insights podcast. This is our first podcast for 2023. Happy new year. My name's Ian Pace. I'm a Partner in the employment team based in Manchester. I'm joined again by my North West colleague Rebecca Cairney, who's a Principal Associate based in our Liverpool office. Hi there, Rebecca.
Rebecca Cairney: Hi, Ian.
Ian: In this podcast we're going to be discussing flexible working. What we mean by this, what the law currently is, and what the new proposals are, as well as potential impact for you and your business. So Rebecca, why is flexible work in such a hot topic at the moment?
Rebecca: Yeah Ian so the government has actually been reviewing the law on flexible working since around 2019 when they put forward a number of proposals into the Good Work Plan. And shortly after this, the flexible working was obviously pushed much higher up the agenda when the coronavirus pandemic hit in early 2020. And a lot of people at that point then began working from home.
Rebecca: So fast forward from then to the end of 2021 and the government launched a consultation on flexible working and whether reforms were required to the existing law. And if they were, to what extent. So now post-pandemic, obviously flexible working still remains a priority for a lot of workers wanting flexibility on when and where they work. And the response to the government consultation is now being published. It's called Making Flexible Working the Default and there's a number of significant changes proposed.
Rebecca: The government is also supporting the Employment Relations (Flexible Working) Bill which passed its second reading on 28 October 2022. So there's a lot going on.
Ian: It does sound like it. What is the current position and what is the current law on flexible working?
Rebecca: Well, it only applies to employees. So agency workers, self-employed contractors, consultants, etc. are all excluded and the right to request flexible working is only available to employees who have 26 weeks service.
Rebecca: Aside from that, employers are actually only obliged to consider one request within a 12 month period, and they actually have three months to respond to the request or longer if agreement is reached with the individual. It's very process-driven and you might be aware that there's eight business reasons that make up the current list as to reasons that an employer can reject a flexible working request. And so just as a reminder, that includes:
- Extra costs, that will be a burden on the business;
- The fact that work can't be reorganised amongst other staff;
- People can be recruited to cover the work;
- Flexibility will negatively affect quality, performance or the business's ability to meet customer demand;
- And there's a lack of work to do during the proposed working times; or
- The businesses planning structural changes.
Rebecca: So a list of eight reasons as to why an employer can refuse a request at the moment. Claims can currently be brought in the employment tribunal, but only for very limited reasons, such as a procedural failing, and employment tribunals have restrictions as to what they can review. So they can't look behind the business reason and they can only award very limited compensation. And their role essentially is restricted to a review of the process, considering whether the request was taken seriously, whether the decision was based on correct facts, and whether the reason given was one of the eight permitted business reasons.
Ian: OK, so what all the new proposals then?
Rebecca: Well, the proposed changes will mean that the right to request flexible working will become a day one right. So rather than having to have 26 weeks' service. It is a right to request, not an automatic right to have flexible working but it will apply from day one of employment.
Rebecca: The change is also proposed that employees can make two requests within a 12 month period instead of one, and employers must respond to that request within two months instead of three.
Rebecca: And perhaps most significantly, the proposed changes mean that employers will be required to consult with their employees as a means of exploring any alternative available options before rejecting a flexible work request.
Rebecca: So it seems they've intended to simplify the process for requesting flexible working by removing the requirement for employees to set out how the effects of their flexible working request might be dealt with by the employer. And instead, employers should engage with employees to understand what the impact of the flexible working request would be.
Rebecca: Just on that, there is no change to those eight business reasons. They will remain the same.
Ian: OK, that's really clear. So obviously there's going to be it looks like there's going to be a change to the flexible working request process. What exactly might this mean for business?
Rebecca: Yeah so flexible working doesn't just cover the combination of working from home and in the office. It can include employees making use of job sharing, flexi time, or working sort of compressed annualised or staggered hours.
Rebecca: So amongst of the things, the government's proposed changes are intended to give employees greater access to flexibility over where, when and how they work. And some stakeholder responses to the consultation have expressed concern that allowing requests for flexible working from day one of employment might sort of pose unnecessary organisational, logistical challenges.
Rebecca: So for example, in sectors such as education, where teachers are required to provide specific services at set times or in hospitality, for example, where flexibility is often pre-built into roles, sort of because of the shift part of the nature of their work.
Rebecca: The government has, however, decided to proceed with the proposal to encourage open conversations about flexible ways of working from the start of the employment relationship and sort of bring the law into line with existing good practice. An interesting figure was that 69% of employers who responded to the consultation confirmed that they actually already accept requests for flexible working from day one of employment, which I thought was surprising.
Rebecca: So going forwards and kind of looking past the COVID-19 pandemic, the government also seems to be suggesting that ad hoc requests for flexible working might become more prevalent. So suggesting that employers should be encouraged to have flexible working policies in place if they haven't already, and allowing employees to make informal requests for flexibility, which don't necessarily result in long term or contractual changes.
Ian: OK so we've talked about the consultation and the proposals in that consultation. Was there anything in the consultation that hasn't made of the final cut?
Rebecca: There was a proposal as to whether employers needed to provide evidence as to why a request was due to be or had been rejected. It doesn't appear that the new legislation will impose any sort of evidential requirements on employers. There's a proposal that employers must produce a written notice to show that they had considered at least one alternative working arrangement but that, again, was rejected due to concerns that it might reduce the request to a tick box exercise or reduce the effectiveness of discussions between the parties. So those couple of things didn't make the cut.
Ian: That's really helpful. Thanks very much for explaining all that, Rebecca. So in summary then, the government's consultation paper notes that primary legislation is required, but it hasn't actually set out any timetable or provided any draft legislation to put this into law.
Ian: So with the government supporting the existing Private Member's Bill, it does seem likely that the proposals that you've discussed will be implemented soon. And obviously we will update you as soon as we have any news of any developments on that.
Ian: In the meantime, if you need any assistance with implementing any of the flexible working policies or dealing with requests, please do feel free to contact the either me on ian.pace@weightmans.cmo or Rebecca on rebecca.cairney@weightmans.com and we'd be more than happy to help.
Ian: Thank you again for listening and again, happy new year. We're back in the next few weeks with more employment insights. Thanks for listening. Thanks, Rebecca.
Rebecca: Thanks Ian.