All employees may soon be able to ask to work flexibly when they start new jobs under imminent government proposals.
The Department for Business, Energy and Industrial Strategy (BEIS) is set to allow workers to request flexible working from day one at a new employer, replacing the current 26-week period.
The plans were part of the Conservative party’s manifesto in the 2019 election but their introduction to parliament was delayed by the Covid crisis. Day one rights were also promised in Labour’s manifesto.
A right to request flexible working arrangements after six months in a new role has been in place since 2014, but it has not had the impact hoped for by flexible working campaigners.
TUC research in 2019 showed that flexi-time was unavailable to over half (58%) of the UK workforce, with job adverts offering flexible rising modestly from 9.5% in 2015 to 15.3% in 2019. And a CIPD survey the same year found that one in five employees (21%) had no flexible working arrangements available to them yet 68% wanted to work flexibly in at least one form that was not currently available to them.
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The new proposals – which are separate from those of the Flexible Working Taskforce published earlier this year – however, will only grant the right to ask for flexible working – they will not apparently confer a right to flexible work.
Peter Cheese, the co-chair of the taskforce, said in May that the pandemic had demonstrated that people could work productively away from traditional workplaces, with 71% of firms reporting that home working had either boosted or made no difference to productivity.
A government spokesperson said: “As is set out in the 2019 manifesto, the government is committed to consulting on making flexible working the default unless employers have good reason not to – boosting business productivity and helping even more workers to join the labour market.
“Our proposals will be published shortly.”
Daniel Zona, an associate in the employment team at law firm Collyer Bristow, warned that the mooted plans may not have much of an impact for employees requesting flexible working: “If employers are not encouraged or required to more readily accept these applications, then the impact may not be as great as the government hopes.
“Currently, employers are able to refuse a request for a variety of business reasons and once a request is refused, the employee is unable to make another formal request for up to 12 months.”
He added that ministers could consider other measures to strengthen the employee’s right if they were serious about creating a more flexible workforce. For example they could reduce the grounds for refusal or make it easier to challenge a refusal in the employment tribunal.
If employers are not encouraged or required to more readily accept these applications, then the impact may not be as great as the government hopes” – Daniel Zona, Collyer Bristow
Zona said: “The pandemic has forced many to work from home and to work flexibly and agilely. With an end to restrictions and a slow return to normality employers are having to consider what their workforce will look like going forward. Many are already considering and offering more flexibility in the place, time and hours staff work.
“This is an opportunity for employers to be really creative in encouraging an efficient, happy and productive workforce and to throw off the shackles of more traditional working practices.”
Malcolm Gregory, a partner in the employment law team at Royds Withy King, said the world of work had moved on since the existing legislation was enacted in 2014. He said: “Originally, the right only related to those wanting flexibility to deal with parental or caring responsibilities” but a private members bill introduced by Tulip Saddiq in June 2021 would have required employers to offer flexible working in employment contracts from day one and to advertise vacancies as suitable for flexible working.
“If the government is planning to publish their proposals regarding flexible working shortly, it would appear that their plans may perhaps go further than the current private members bill,” said Gregory.
Employers would be nervous about staff being able to make requests on an ad hoc basis, he added: “If the government is going to make the right to request flexible working a right from day one of employment which employers will have to honour unless there is a good reason not to do so, it will certainly take employers some time to get used to how that will impact on their organisational arrangements.
“It would make sense to ensure that any improved rights in this area remain restricted to being possible once each year. If employees are able to legally make flexible work requests at their whim, the uncertainty that would create for organisations and work colleagues is likely to be unmanageable.
He said employers would be looking to retain the ability to “retain some level of certainty around their organisational management must be factored into any revised regulations.”
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