September 23, 2022
The long-awaited Employment Bill may be published later this year. The draft Bill, first introduced in the Queen’s speech in 2019, was put on hold and repeatedly delayed due to the impact of COVID-19. There is some confusion around what the change to flexible working will entail should the Employment Bill come into force. In the Queen’s speech, as set out in the Conservative’s manifesto earlier that year, it was announced that the proposal was to make flexible working the default position unless an employer had a ‘good reason’ not to allow it. This proposal would have been a radical change in favour of employees as flexible working would become an automatic right – thereby weakening an employer’s ability to push back on hybrid working requests.
However, the proposal was subject to consultation. After which, it was found not to be achievable in practice due to the wide variety of business models and differing individual needs. Instead, the consultation paper cited much more modest proposals to the law, with the main change being the right for employees to request flexible working from the first day of employment i.e., be a ‘day one right’. These new changes are not a great leap from the existing framework in place and a far cry from the initial proposal put forward, as they only slightly broaden the existing right for employees to make a flexible working request.
What will the new legislation mean for hybrid work?
To properly answer this question, we need to look at what the law currently provides on flexible working. Currently, an employee, not workers or contractors, can request to work flexibly provided they have at least 26 weeks’ continuous service – known as a statutory request. Once a written application has been made, an employer has a 3-month decision period to consider and respond to the request and can only refuse based on one of eight business reasons.
The Employment Bill still has a long way to go before it is finalised and we can expect to see confirmation of the final plans to flexible working later this year, which may still be subject to change. However, from the consultation so far, a few legislative changes are being considered and, if agreed, we may see some of the following changes come into force later this year:
- Employees can request flexible working from the start of their employment – This would be the most significant change to the legislation as currently only employees who have at least 26 weeks’ continuous service can make a request.
- Amending the business reasons an employer can rely on to refuse a request – The consultation paper did not see a need to fundamentally change the list of business reasons so we are yet to see what, if any, changes will be made to the business reasons for refusal.
- Requiring the employer to suggest alternative working arrangements where possible – This would encourage parties to cooperate to find a compromise thereby promoting a stronger working relationship. For example, an employer could look to make a change for 8 months if it cannot support a permanent change or suggest an alternative flexible pattern to the one suggested by the employee.
- Allowing an employee to make more than one statutory flexible working request in a 12-month period; the law currently limits this to one per year. If implemented, this would benefit employees whose personal circumstances may change from when they made their earlier request.
- The right to request a temporary arrangement – Current legislation already allows for employees to request a temporary flexible arrangement, but the government believes this is under utilised so may seek to make changes. One of the changes could be that employers are required to raise awareness on temporary working arrangements to staff. As temporary changes may be harder to push back on than permanent requests this may encourage employers to be more accepting.
So, what will these proposals mean for hybrid working? Whilst the proposed changes are likely to encourage employers to think more openly about flexible working and encourages a two-way conversation, the proposals do not make flexible working the default position or create an entitlement to flexible working.
Instead, the real change to hybrid working is likely to stem from the impact of COVID-19 on working practices which has shifted the way we think about work and employee expectations on flexible working. This was acknowledged in the Government consultation paper which recognised there needs to a change in culture which is hard to achieve by legislature alone and dependent on each business and sector.
What will employees be entitled to?
An employee does not have a right to flexible working but a right to request flexible working. This is an important distinction and when the Employment Bill was initially drafted and discussed it suggested making flexible working the “default position” However, as explained above, this is no longer part of the current consultation and therefore we do not expect to see a change from the current right to request flexible working.
An employer can only refuse a statutory flexible working request for one or more of the eight reasons set out in legislation:
- 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
- Planned structural changes
These grounds of refusal are drafted very broadly so if an employer considers any of these grounds apply then the test is satisfied. We are yet to see if there will be any changes to the current eight reasons for refusal for flexible and hybrid working.
As it stands, an Employment Tribunal cannot question the commercial rationale or business reason behind an employer’s decision to refuse the request or substitute a decision with its own on whether a request should have been granted. This massively limits the amount of scrutiny on an employer; although it is pertinent to note that the Equality Act 2010 provides wider protection to individuals so employers should take this into consideration when deciding a request as a refusal could amount to discrimination.
How does the Bill affect the negotiation power balance between employee and employer?
The right to request hybrid working and flexible leave will remain a conversation and we may see more obligations on the employer to suggest alternatives but ultimately any request will be subject to the needs of the business. As such, employers will still have the final say. Despite this, employers are encouraged to (1) act reasonably when considering a request; (2) assess the suitability on a case-by-case basis; (3) consider having a trial period if appropriate; and (4) document any reasons for refusal. When the final consultation paper is issued, we may see further requirements imposed on the employer.