Flexible Working Bill – Employee Rights Potentially Extended

Flexible Working Bill – a new bill concerning flexible working is awaiting its second reading on 19 November 2021. The pandemic has brought the possibility of increased flexible working to everyone’s attention. But flexible working doesn’t simply mean working from home. Working different hours of the day, different days of the week or over different periods, such as during term time, are also possibilities. The new flexible working bill attempts to combat prejudice against those for whom flexible working could make the most amount of difference. Namely women, carers and those with families. It is also looking to combat the way income inequality affects access to flexible working – ‘the truth is that people who were on higher incomes and earning more were able to work from home and work flexibly’ (Tulip Siddiq MP). The bill, if it receives royal assent, will increase the obligations on employers to consider flexible working.

Flexible working bill – what does it propose?

The new Flexible Working Bill was introduced to parliament in June 2021 and proposes:

• that all workers have a legal right to flexible working from day one of employment, rather than needing to have 26 weeks’ continuous service with an employer, as is currently the case.
• the bill, if passed, would require employers to include in job advertisements what flexibility is available as well as offer flexible working arrangements in employment contracts.

Flexible working bill – thoughts

That is all we really know at the moment, but the bill is also likely to make it harder for employers to reject flexible working requests for flimsy or unspecific ‘business reasons’. The argument being made is that whilst working from home increased due to the pandemic, other forms of flexible working dwindled. MP Tulip Siddiq: “in fact, from March 2020, flexible ways of working other than working from home, including compressed hours, job sharing and part-time working, all gradually declined. The organisation Pregnant Then Screwed said that phone calls to its hotline from women who had been refused when they asked for flexible working had more than doubled, and about two thirds of requests for flexible working had been turned down.” Although more people were forced to work from home (and hence obliged to work flexibly without making a request), more flexible working requests were being rejected.

What is flexible working?

Flexible working isn’t simply working from home. The pandemic (and its aftermath) have made people think differently about flexible working and so many new possibilities have emerged. This includes:

• Hybrid working – a type of flexible working where the employee splits their time between working in the office and working at home.
• Part-time – this can mean the number of hours are reduced or structured differently so they can operate over fewer days or across the working day outside traditional 9-5 core hours.
• Term time working – giving parents greater freedom outside of term time.
• Self-rostering – an employee could in theory manage their own hours of work each day. But this will need to be measured against a work roster made by their employer.
• Job share – if two people fill the same role they can both essentially work part-time and co-ordinate with one another to fulfil targets.
• 4 day working week – this would be a radical move in the UK, but we often hear of studies and experiments in other countries with seemingly positive results, so it isn’t completely out of the question: “Four day working week an ‘overwhelming success’ in Iceland” https://www.bbc.co.uk/news/business-57724779.

Flexible working bill – the current regime

The Flexible Working Regulations 2014 provide a statutory right for employees with at least 26 weeks continuous service with an organisation to request flexible working. So, to some extent, there is a legal right, but it is only a legal right to ask and not to have. Employers can, based on business grounds, decline a request.

Upon receipt of a flexible working request an employee is obliged to do the following:

• The employee must make the request in writing and the employer has a three-month decision period (which can be extended by agreement) to consider the request, discuss it with the employee and notify the employee of the outcome.
• The employer must deal with the application in a reasonable manner.
• The employer can only refuse for one or more of the eight reasons set out in the legislation. These include:
  • the burden of additional costs;
  • detrimental effect on ability to meet customer demand;
  • inability to reorganise work among existing staff;
  • inability to recruit additional staff;
  • detrimental impact on quality;
  • detrimental impact on performance;
  • insufficiency of work during the periods the employee proposes to work; or
  • planned structural changes.
• The request may be treated as having been withdrawn by the employee if, without good reason, the employee fails to attend a meeting arranged to discuss their request and a further meeting rearranged for that purpose. Similar provisions apply in respect of a meeting to consider an employee’s appeal against the rejection of a request.
• An employee can make only one flexible working request in any 12-month period.

When can an employee make a claim against an employer?

An employee who has made an application under the statutory procedure may bring a claim on the basis that:

• The employer failed to deal with their application in a reasonable manner.
• The employer failed to notify them of the decision on their application within the decision period.
• The employer rejected the application for a reason other than one of the statutory grounds.
• The employer’s decision to reject the application was based on incorrect facts.
• The employer treated the application as withdrawn but neither of the grounds entitling the employer to do so applied.

A claim cannot be brought on the first four of these grounds until either:

• The employer has notified the employee of the decision on the application.
• The decision period applicable to the application, including any agreed extension to that period, comes to an end.

Although this seems like a limited set of possible avenues for disgruntled employees, it needs to be considered that other forms of statutory protection exist when dealing with flexible working request rejections, such as discrimination. See our recent blog on an employment tribunal case in which an estate agent was able to successfully sue her former employer for £185,000 for indirect sex discrimination when dealing with a flexible working request.

Flexible working bill – examples under the current regime

Acas (The Advisory, Conciliation and Arbitration Service) is a non-departmental public body whose purpose is to improve organisations and working life through the promotion and facilitation of strong industrial practice. Acas published a code of conduct for employers to read when considering their response to a flexible working request. You can read about the code in our recent blog about a flexible working request case or the real thing here. Acas also published a set of examples for employers to use before making decisions. Here are a few:

• The burden of additional costs – ‘Jane and Liam are two managers who apply for a post together as a proposed job-share. Both have the skills and experience needed but want to balance work with outside interests. In line with the organisation’s policy of considering all vacancies suitable for flexible working, the employer seriously considers their request. Both Jane and Liam want to work three days a week and while the employer is happy to appoint, he is unable to afford the increased payroll costs. The employer discusses alternative working patterns around 2.5 days each with Jane and Liam, but they are not prepared to change their pattern. In the light of this and an inability to compromise, the employer turns down the request for flexible working.’
• Detrimental impact on quality – ‘A&B Autos is a small garage servicing executive cars. An experienced mechanic wants to reduce her hours and asks under the right to request flexible working. The other mechanics are still quite new and are “learning the trade” and the employer is concerned that the garage will be unable to tackle some of the more difficult repairs to the quality standards demanded by customers. The employer decides therefore to turn the request down but also offers to reconsider the request six months later after a programme of training to up-skill the other mechanics. Subsequently the success of the training programme allows the employer to approve the reconsidered request.’

Here to help

The flexible working bill could revolutionise the way employers think about flexible working. By having to offer employees the chance to make flexible working requests from day one and advertise jobs with flexible working options embedded, it could mean a genuine move to more hybrid forms of working. However, it is yet to reach its second reading and, no doubt, the government will be tentative to put added pressures on employers so soon after the pandemic. It is important to consider, however, that the real purpose of the bill is to allow those who benefit most from flexible working, especially women, a fairer chance to find suitable employment and to integrate more effectively into the UK economy. McKinsey has pointed out that if the UK were to fully utilise women in the economy, it could add £150 billion to the economy by 2030.

If you have any questions or need help dealing with flexible working requests or other employment law issues please contact any one of our employment lawyers Marc Jones or Imogen Finnegan or call us on 0203 637 6374.