A Legal Perspective - The UK Government's Flexible Working Consultation Explained
By Jennifer Wright, Principle Associate of Shoosmiths and Flexibility Works Chair
On 23 September, the Government opened its consultation on proposals to reform the flexible working regulations. The objective of the reform is to fulfil commitments made in the Good Work Plan and to take account of changing work patterns as a result of the Covid-19 pandemic.
The legal matrix surrounding flexible working has undergone significant change since its inception. Initially it was confined to those who required flexible working to fulfil caring responsibilities. In 2014, the legislation was expanded to make flexible working available to all employees with 26 weeks’ service or more. We are now at the next stage of the evolution of flexible working in the UK and the Government is canvassing opinion as to what that should look like.
Many had hoped that the consultation would set out some radical reforms of working practices, with a tearing up of the rule book and the 9am – 5pm five day working week. That hasn’t borne out. The consultation sets out a fairly safe, some may say uninspired, set of recommendations.
This article focuses on some of the key proposals in the consultation, identifying both the potential benefits and limitations of these as well as highlighting where the Government could have taken a more radical approach.
Right to request flexible working from day 1
This proposal removes the 26 weeks’ service condition. It opens flexible working to a wider demographic of employees. It will hopefully help encourage movement in the job market, particularly for those who may not have looked to move role because of an inability to seek flexible working at the commencement of their new employment. Removing this service condition may facilitate more movement across various demographics of the workforce i.e. women, people with a disability, older workers, parents, carers and those looking for a better work life harmony. With some three quarters of us in Scotland interested in having flexible working, this could offer significant recruitment benefits to employers. Another long term by product of such increased movement may be a reduction of the gender pay gap.
Practically, for this change to be utilised to its potential, employers and employees need to be more comfortable having discussions about flexible working at interview and in pre-employment conversations.
The Government stepped back from requiring jobs to be advertised flexibly. It said this was because those employers who are not open to flexible working would simply say that the job was not suitable for flexible working. As a result, it would not make any positive contribution towards changing the minds of those employers more resistant to flexible working. The proposed reforms still lay the responsibility on employees to ask and negotiate flexible working. However, while including a mandatory requirement to think about flexible working at the point of recruitment may not in and of itself change the minds of resistant employers, it would help candidates make more informed choices about the roles they wish to undertake and the circumstances in which they wish to give up the employment protections gained in their existing role. This is turn would help to save disappointment when a day 1 flexible working request is not received favourably by an employer and enable an employer to be realistic about the flexible working opportunities that it can accommodate in certain roles. It would also help to encourage a change of minds of those employers resistant to flexible working when they find themselves having to compete with employers who do and thereby attract a broader calibre of job applicant.
The challenge for this proposal is that it will require a recalibration of the flexible working application process. Currently, an employee has to explain how a particular work pattern may affect the employer’s business and how that could be dealt with. This will be challenging for an employee to do at the commencement of their employment. This will therefore require more proactive involvement from employers at the commencement of recruitment to set out what sort of flexibility could be accommodated.
Grounds for refusal
It would be unrealistic to think that the reformed legislation could include no grounds for refusing a flexible working request. An employer has to have scope to take decisions in the best interests of the business and of its wider workforce. The question is whether all of the grounds for refusal remain sufficient and whether an employer who has had to refuse should have to provide more of an explanation and justification for refusal. Requiring an employer to provide more of an explanation upon refusal of a flexible working request could have benefits for employer and employee. The employee is given an opportunity to fully understand the reasons why the flexible working request cannot be accommodated and has visibility of that decision making. That could help to resolve employment related disputes before they arise and give more scope for honest and transparent dialogue between employer and employee.
This consultation proposes that an employer be required to suggest alternatives where it cannot accommodate an employee’s flexible working request. Again, this has the promise of being a strong development in the flexible working space. It is likely to be better for employer and employee relations that more dialogue is encouraged when a flexible working request is tabled particularly when an employer is of the view that it cannot be granted. However, the current proposals only require employers to say that the ‘alternatives have been considered’. This lacks teeth and arguably could make it difficult for employees to challenge the fact that this has taken place. A mechanism whereby alternatives have to be presented and discussed would be more beneficial. A more radical approach could be to mandate that employer’s allow the employee to undertake a trial period.
There are a number of other ways that the Government could have looked to reform flexible working legislation. One of the proposals that had been canvassed was to introduce a “right to have”, removing any ability for the employer to turn down the request. The hope being that this approach would result in more radical change to working practices. While the appeal of such a ground-breaking approach is clear to employees, in reality it would be too great a challenge to implement this in the workplace. Ultimately, businesses are driven by commercial factors often out of their control, whether that be client demands dictating when work needs to be done or competitors offering services and products with greater speed and lower cost. To prevent business from being able to meet these commercial realities would make no economic sense and could only be successful if applied consistently to place all businesses on a level playing field.
That said, the Government could have reflected on some more creative proposals for its consultation document. For example, reporting on flexible working in the same way as employers report on gender pay gaps. An employer could be required to report how many of its jobs are advertised as working flexibly, how many of them are undertaken on a flexible working basis and how many flexible working requests it has received and refused in the last 12 months. Or at the very least be encouraged to put information about the working culture on publicly accessible information, for example its website and social media. This would encourage an employer to think more proactively about the flexibility available in its workforce and enable employees to have visibility of an employer’s approach to flexible working prior to joining.
It would also have been beneficial to see positive change to the enforcement mechanisms within the flexible working legislation. The legislation currently enables employees to seek an order for reconsideration of their flexible working request and/or compensation up to a maximum of eight weeks’ pay where there have been procedural failings. A more radical change would be to introduce a mechanism whereby the employment tribunal could order an employer who refuses a flexible working request to agree to a specific flexible working pattern and, in conjunction with that, increase the financial compensation available to employees who have their flexible working request unreasonably refused. Both of those approaches would act as a deterrent to employers unreasonably refusing applications of flexible working and give employees better recourse for remedy when they do.
Ultimately changes to flexible working in the UK will have to be driven by education. Legislation will only take us so far. The hope is that we can build on lessons that have been learned during the pandemic and foster trust between employer and employees so that requests when they are made are granted where possible and only refused in circumstances where they are simply not viable for the employer to agree to. And that is all begins with a conversation.