Earlier this year, a Bill was introduced in Parliament to give more workers the right to request and access flexible working options. But does it do enough to enhance workers’ rights?
As the coronavirus pandemic took hold, remote working became a necessity for millions in the UK and flexible options were needed to accommodate families not only working from home but caring for and educating their children there as well. In more recent phases of the pandemic, many employers have opted to return to traditional working practices, such as full-time office work and a typical 9am-5pm working day.
Flexible working and reduced hours have been proven to be beneficial for people’s general wellbeing
Currently, all employees have the right to request flexible working but it is fairly easy for an employer to dismiss such a request. The new Flexible Working Bill proposes giving workers the right to flexible work from their first day of employment and requiring employers to offer flexible working arrangements in employment contracts. At the same time, the government is running a consultation on options to update current flexible working guidelines.
Everyone has the right to work or engage in productive employment, which is enshrined in the Universal Declaration of Human Rights and included in the International Covenant on Economic, Social and Cultural Rights. ‘Just and favourable conditions of work’ are included among these rights, yet flexible working options remain out of reach for many workers.
Why Is Flexible Working Important?
Flexible working encompasses a multitude of approaches to work. It could mean job-sharing, flexible hours split across multiple days, working from home, part-time jobs, compressed hours, ‘flexi-time’, which gives employees more control over the hours they work, and more. Currently, approximately one in three requests for flexible working are turned down.
While some prefer the workplace environment and a clear division of work and leisure time, flexible working is a necessity for others. For disabled people, flexible working can make accessing the workplace significantly easier, and more flexible opportunities would help close the 28.8% employment gap between disabled and non-disabled people.
But it is not just disabled people who benefit from flexible working options. Parents – both single and partnered – could greatly benefit from increased flexibility in the workplace. A 2021 survey of almost 13,000 working UK mothers revealed that half do not receive the flexibility they request.
“For employees, there can be better work/life balance, reduced costs in commuting and the ability to live in areas with a lower cost of living,” said Shazia Shah, senior associate solicitor in employment at Irwin Mitchell. “There can also be significant benefits for employers too, such as higher productivity, more satisfied workforce, reputational benefits, lower staff turnover, and opportunities to downsize their workplaces and reduce costs. Flexible working can also play a critical role in helping businesses to rebuild as we learn to live with COVID-19.”
Flexible working and reduced hours have been proven to be beneficial for people’s general wellbeing. It fosters a great sense of work/life balance and helps to protect employees from being overworked.
What Flexible Working Rights Do We Already Have?
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In the last general election, the government included flexible working in a manifesto pledge, asserting that they would make it the default position unless employers have a “good reason” not to make it available. However, the UK already had and has an existing system in place.
Shah explained: “Despite the relatively low uptake, the UK has had a framework for flexible working in place for many years. There is a legal right to request flexible working – but no legal right to actually receive this – and employers can decline a request, provided they have a business reason for doing so, which is usually not that difficult to find.”
Under the current framework, all employees have the legal right to request flexible working. This is known as “making a statutory application”. Anyone who requests flexible working must have worked for the employer in question for at least 26 weeks to be eligible.
Under current guidelines, if a flexible working request is approved it becomes a permanent change
The guidance for employers requires them to deal with requests in a “reasonable manner” by assessing the advantages and disadvantages of the application, discussing the request with the employee in a meeting and offering an appeal process for the decision. The employer can refuse an application with a “good business reason”, such as impracticality.
“An employee who has been unreasonably denied flexible working arrangements, or denied for a reason other than the prescribed statutory reasons, may bring a claim in the employment tribunal,” said Shah. “If the employer has acted in a discriminatory way in denying the request, this can also see them end up in tribunals.”
For gig economy workers and freelance workers, there are no specific guidelines outlining their rights for flexible working as they are typically in control of scheduling work time.
What Are The Flexible Working Bill And Consultation Proposals?
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The new Bill sets out several proposals, including the right to request flexible working from day one of employment and requiring employers to advertise flexible working options.
While the Bill makes its way through parliament, the government has recently concluded a consultation to explore how flexible working regulations can be updated. They have included the right to request flexible working from day one in their proposals.
“The government believes that making flexible working available at the outset of the employment relationship will help encourage employers to consider flexible working options early in job design and recruitment processes and give employees more confidence to make a request,” explained Shah. “However, it does not intend to impose a legal duty on employers to say in job adverts whether they are open to flexible working.”
Another proposal will investigate whether the eight reasons for refusing a flexible working request all remain valid. Three other proposals cover requiring the employer to suggest alternatives to flexible working, requesting temporary arrangements and reviewing the administrative process that underpins the right to request flexible working.
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At present, employers are not required to offer alternatives to a request for flexible working. The government’s consultation will consider the practicalities of asking employers to set out different options.
“The government believes that asking employers to consider alternatives will help influence organisational norms,” said Shah. “Currently, an employee can only make one statutory request every 12 months and their employer has three months to consider it. The government is considering removing this limitation so that people can make more than one request each year to reflect changes to their personal situations.”
Under current guidelines, if a flexible working request is approved it becomes a permanent change.
Shah continued: “If the employer agrees to an employee’s flexible working request, it will be a permanent change to the employee’s terms and conditions of employment unless the parties agree otherwise. The government believes that the ability to request a temporary arrangement is underutilised and it wants to know if businesses are aware that they can agree to short-term arrangements.”
The government began reviewing feedback after the consultation closed on 1 December 2021 and the Flexible Working Bill will have its second reading in March 2022.
