In 2019, the Conservative party stated in their election manifesto that they would “encourage flexible working and consult on making it the default unless employers had good reasons not to”. This came after public anger in relation to poor working conditions in UK factories and warehouses.
It now seems that the Government is backtracking on this commitment. It was expected that a new employment bill, including changes to flexible working rights, would be passed in the Queen’s speech, in May this year. But government officials have given reason to believe that this may not go ahead.
This decision has come as a particular shock in the wake of P&O Ferries’ unfair dismissal of around 800 employees last month which highlighted the need for more stringent employment legislation.
We’ll explore the existing rights in England and Wales around flexible working, as well as the changes the new employment bill would bring and why it is needed. For further advice, get in touch with our expert Employment team.
Is Flexible Working Already a Legal Right?
In 2014, the existing law around flexible working rights was extended so that all employees with 26 weeks of continued employment had the right to request flexible working.
But whilst employees can ask for a flexible working arrangement, there is no obligation for employers to approve it and they can turn down an employee’s request for any business-related reason.
Currently, if an employee decides they want to try and move to a flexible working arrangement, they will have the choice to submit either a statutory or non-statutory request.
A statutory application should be written up and include:
- the date the application has been sent;
- acknowledgment that this is a statutory request;
- details of your request – this could be reducing your working hours, changing your working pattern or place of work;
- include whether your request is as a result of any disadvantage that your current working arrangement brings – for example, a person with a disability may be put at a disadvantage if the office they’re working in is not fully accessible;
- why you’re making the request – this is especially important if the main reason for your application is based on one of the nine protected characteristics as your employer could be acting discriminately if they chose to block your request in this scenario;
- how the business could deal with any impact of your flexible working arrangement – this will help your employer envisage how a flexible working arrangement could work or even benefit them. For example, if you’re asking to reduce your hours, a job-share arrangement could be a beneficial solution for all parties;
- if you’ve already made an application, you should include when this was – there are rules around statutory applications that mean there must be a 12-month period between the submission of each application.
Following your statutory application, your employer will then have three months to come back to you with their decision. The only exception to this is if you and your employer have agreed on an extension to this timeframe.
If you decide to go down the route of submitting a non-statutory application, the same rules won’t apply, but it is still recommended to set this is out in writing with the same information provided. Unlike a statutory application, this informal request can be sent at any time and you won’t need to leave a 12-month gap before sending another one.
How Would the New Legislation Change Flexible Working?
The anticipated new employment bill sets out a new approach to flexible working that would make it the “default option” for employees.
If this bill were to be passed, it would open up the option of flexible working to every employee, regardless of length of service. For employers, this could mean increased morale and productivity amongst staff and for employees, a better work-life balance and more time for commitments outside of work.
Why is New Legislation Needed?
As a result of the pandemic, many people have experienced the advantages of having the option to work flexibly – especially in relation to where they work, whether it’s in the office or at home.
Having greater flexibility in the workplace is also essential for enabling people to remain in roles they might otherwise have had to leave, and inviting people into roles they may previously not have been able to apply for because of personal circumstances. For example, those with caring responsibilities may benefit from a more flexible arrangement to enable them to meet the needs of the person they are caring for, whilst remaining in paid employment.
On a national scale, a commitment to flexible working would help the labour market rebuild after the pandemic. Abb Francke, Head of the Chartered Management Institute has said that this is “exactly the sort of legislation we need to build back better and level up the UK”.
As Employment Lawyers, we recognise how important flexible working is for many employees and we’re disappointed to hear of the further delay with the new proposed legislation. We hope there is a reconsideration of the proposals promised in the 2019 election manifesto so that these much-needed changes can be put in place.
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