What does the Employment Rights Bill say about flexible working?
Employment Rights Bill - Flexibility Works
October 11, 2024
October 11, 2024

Our co-founder and director Nikki Slowey gives her thoughts on what we know so far about Labour’s plans for flexible working in today’s Employment Rights Bill

If you’re interested in employment law (and who isn’t!?) you’ll have been counting down the days to Labour’s Employment Rights Bill. Labour promised they’d publish a draft bill in Parliament within 100 days, and today was the day.

The draft bill, and other proposals, aim to improve workers’ rights and broadly we support the proposed changes, though we’ll euphemistically say the detail is still rather light.

Default flex

It looks like the proposed change around flexible working is subtle but likely to be significant in practice. The existing law says employers ‘shall only refuse’ a flexible working request if one of eight permitted reasons apply, such as the burden of additional costs, or an inability to recruit extra staff. The proposed new law is very similar. But in addition to setting out (basically the same) specific reasons flexible working can be refused, it also states it must be ‘reasonable for the employer to refuse the application on those grounds’. This means an employment tribunal will have greater powers to scrutinise the reason for any rejection.

This point will hopefully make employers think twice about their decision, and whether their decision would stand up to external scrutiny.

There’s still a big question mark over what counts as ‘reasonable’ here, and who decides.

We know the draft bill includes the formation of a new enforcement agency, called the Fair Work Agency, which would bring together existing enforcement bodies. It would enforce workers’ rights and support employers looking for guidance on how to comply with the law. But we’ve not yet worked through the legal minutiae to see whether it would scrutinise flexible working refusals and/or take action.

Gender pay gap and menopause support

Other elements of the draft bill that will involve flexible working – though indirectly – are that large employers would need to go further than just recording gender pay gaps, and create action plans to address them. They would also need to demonstrate how they support employees through the menopause. Flexible working will be essential for both.

Right to switch off

We now know definitively that a proposed ‘right to switch off’ won’t be in the new legislation. Instead, it’s likely the government will ask employers to come forward with ‘a code of conduct’. A similar code exists in Ireland, which says employees have a right to:

  • Not have to routinely perform work outside their normal working hours.
  • Not be penalised for disconnecting.
  • And that all workers and employers have a duty to respect another person’s right to disconnect.

This seems pretty reasonable to us, though it’s unlikely to exist before 2026.

Other highlights

The draft bill itself includes 28 separate reforms, including:

  • Ending exploitative zero hours contracts
  • Introducing day-one rights for paternity leave and bereavement leave
  • Stronger protections for pregnant women and new mothers returning to work including protection from dismissal whilst pregnant, on maternity leave and within six months of returning to work.
  • Changes to the Minimum Wage to take into account the cost of living and ensure all workers, whatever their age, are paid at the same rate.

Timings

The bill itself is not expected to pass into law until June or July next year. And it seems most elements won’t be implemented for two years after much consultation with employers.

What does the bill mean for employers?

Even if the legal changes around flexible working prove to be slight, the cultural shift in expectations is what we think employers should focus on.

The Government’s press release says it wants to make sure “everyone can get on in work and not be held back because work isn’t compatible with important family responsibilities”.

This signals a clear move away from a world where work and family life are mutually exclusive, in which you either work or you care. And it adds to the existing momentum for more flexibility at work, and a better work life balance overall.

Many progressive employers have already embraced flexible working, and they are reaping the rewards for their people and their organisation. For these organisations, the bill merely puts existing good practice into law.

But for others that still prefer ‘traditional’ ways of working, this bill should be a wake-up call.

In Scotland, 85% of workers already work flexibly or would like to, and this demand is only going to rise as more people expect ‘default’ flex. We’re already seeing workers voting with their feet and choosing roles that offer them the flexibility they want and need over those with more rigid work patterns.

Employers of course need to follow the law. But the real motivation for change should be from the softer ‘expectation setting’ element of Labour’s new bill. If employers don’t get on board with flexible working, they’ll struggle to recruit and retain good staff and begin to lag behind their competitors.

Listen to our expert panel

We’re hosting an online event on Tuesday 12 November to discuss the detail of Labour’s plans (we should have more info by then) and unpick what it means for Scottish employers, and what practical actions are needed.

Our expert panel will include an employment lawyer, UK Government representative, and forward-thinking employer for their perspectives.

Book your place

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