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Jo Mackie discusses flexible working rights in Solicitors Journal

March 2023

Jo Mackie, Director and Head of Employment, discusses planned legislative changes with respect to the allowance of flexible working, in Solicitors Journal.

Jo’s article was published in Solicitors Journal, 7 March 2023, and can be found here.

COVID-19’s impact on employment law has been considerable and persistent. Not only did the new regime of furlough (a strategy adopted from the USA) enter the lexicon of employment law, but we also learnt to work from home where possible. Furthermore, in the best instances, we learnt to manage our time effectively, flexibly and remotely.

Since the pandemic started to ease and workers have been asked to resume work in person, we have seen a rise in flexible working requests. Employers have saved money on expensive square footage rental prices with fewer employees in the office at any one time, while employees have saved on commute costs and time. They have also had more time with their loved ones. Not all have been in favour, of course, but those that have tried to enforce what some now consider draconian measures of 5 days per week in their offices have seen workers leave for pastures new.

After realising that flexible working is becoming the norm, the government took a bold step, launching its consultation on flexible working in September 2021. That consultation has now concluded and led to a planned change to employment legislation.

The consultation primarily focussed on the idea of making the right to request flexible working apply from the first day of employment. Currently, this right is only available after a 26-week qualifying period. The consultation made clear that the right to ask for flexible working should remain a right to request, and not a right to have – despite what was reported in the media with headlines such as ‘now millions have the right to work from home’. The government reported that making the right to request flexible working a day one right was proportionate given how the employment landscape has changed, largely since COVID meant workers stayed at home and solutions were found to allow them to work remotely. Many of us who did experience the benefits of home working contributed to the consultation and, it seems, want to retain at least some of this flexibility. The most positive response was to the principle of hybrid working – for example 2 days at home and 3 days in the office. 

Apart from making the right to request flexible working a day one right, the government says it will require employers to consult with their employees, to see what, if any available options there are, before rejecting their flexible working request – a noteworthy change from the current rules. The government’s consultation sought views on whether employers should be required to show they had considered alternative arrangements when rejecting a flexible working request and concluded that such a requirement would encourage wider consideration by businesses of what might be workable for employees. This appears to place more burden on employers to justify a rejection rather than to say it just won’t work for the business needs at present.

The government will also allow employees to make two flexible working requests in any 12-month period, rather than the current limitation of one. The consultation sought views on whether to allow a greater number of requests and reduce the period in which employers must respond to a request. The deadline to respond to a request is currently three months and will be reduced to two. For employers, the government did acknowledge concerns that a 100% annual increase in workers’ ability to make a request for flexible working will cause additional burdens on HR teams, and especially on smaller businesses where often only one person deals with HR matters. However, the conclusion was that the aim of supporting the policy objective of normalising flexible working was more important and that most responders replied positively to this change.

Finally, the government will remove the requirement on those who apply for flexible working to communicate how this will affect the employer. The consultation found that responders wanted a more consultative approach between worker and employer, with better engagement and negotiation. Trade unions were concerned that discrimination and unfair treatment might occur as a result, but the government’s response has been to commit to providing strong guidance to enable awareness and understanding of what the changes mean.

The legislation is part of a PMB, the Employment Relations (Flexible Working) Bill 2022-23 which has been before the commons since June 2022. It passed second reading on 28 October 2022 but has yet to be made law despite government backing. Given the competing priorities of the current government, this may not be a surprise, and I suspect we should see this introduced as new law before the end of 2023.