The introduction of a day-one right to request flexible working will be no “more than words on a page” without effective enforcement, according to the chair of a committee of MPs examining the UK labour market.
Darren Jones MP, chair of the Business, Energy and Industrial Strategy Committee, said: “Updating labour laws to reflect more flexible working is welcome, but as ever, these laws only matter if they are used.”
He was responding to yesterday’s government announcement that it would remove the current 26-week qualifying period and give employees a day-one right to request flexible working.
Staff will be able to make two flexible working requests in any 12-month period, and employers will be obliged to respond to a request within two months, instead of the current three.
The BEIS Committee is currently undertaking an inquiry into the UK labour market for which it heard evidence on workers’ rights in November.
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Jones added: “We have already heard how little enforcement there is of existing workers’ rights. If this is going to be more than words on a page, workers must be able to rely on new rights at work in the face of some employers who will just say ‘no’.”
While the government proposals will simplify the process for an employee requesting flexible working, there will be no change to the list of eight reasons an employer has to refuse the request.
These include there being to much additional cost, an inability to reorganise work, a negative effect on quality or performance, and a lack of work during the proposed flexible working hours.
There will be a new duty on the employer to offer a compromise to the flexible working request. The employer will have to discuss alternative forms of flexible working, rather than simply rejecting the request, although it is not yet clear whether this will be a statutory requirement.
Susan Thompson, partner at the law firm Simkins, said that new employees often need to spend time in a new workplace to meet colleagues, get training and be set up with equipment.
“A day-one right to flexible working could be very disruptive and may not be practical for many roles,” she said. “There is quite a lot of flexibility for employers to reject flexible working requests, and I suspect that employers will find it easy to justify a lack of flexibility during an employee’s probationary period. Accordingly, I don’t think this change will make a dramatic difference.
“Employees may also be reluctant to make too many demands during their probationary periods anyway. While it would be automatically unfair to dismiss an employee for requesting flexible working, employees will still fear repercussions from challenging management decisions so early in their careers.
“Something that may have more of an effect is a new duty to discuss alternatives to the flexible working requests. This is also being considered by the government. Forcing employers to consider compromise, as opposed to accepting or rejecting requests, could have a real impact, but only time will tell how effective this measure is and how strongly it will be enforced.”
Ramifications for agency workers
The Association of Professional Staffing Companies (APSCo) is concerned that the new day-one right to request flexible working could be problematic for agency workers and umbrella companies.
Tania Bowers, global public policy director at APSCo, said: “As we made clear in our submission to a BEIS consultation in 2021, these proposals could have serious ramifications for agency workers, particularly umbrella employees. There is the possibility that these changes could unintentionally lead umbrella workers – who are employed by the umbrella company – to access day-one rights to flexible working due to their status as employees with overarching contracts.
“If umbrella companies, recruiters and clients have to consider an unexpected flexible working request on day one of an agency worker contract, it would have a financial and time impact on all parties and could potentially disincentivise clients from using temporary workers. The concern of APSCo and its members is that this would result in a disorganised transfer of many hundreds of thousands of employed umbrella workers from employment into worker contracts, with the corresponding loss of employee benefits, to circumvent the effect of the legislation.”
APSCo said that at the time of the consultation on the new flexible working rules, BEIS had indicated that it did not intend to include agency workers in new legislation. APSCo has suggested that workers under the protection of the Agency Workers Regulations 2010 who are employees should be given the right to request flexible working at 12 weeks, at the same time as other rights given under the AWR.
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Bowers added: “We also believe there needs to be recognition as to who is deemed the ’employer’ in this decision. If it is the umbrella company, then a flexible working request is unlikely to ever accord with the needs of the business as to when the work must be done.”
