Untangling flexible working

The UK government UK Government published its long-awaited consultation document, ‘Making flexible working the default’ last month, setting out new proposals which, if adopted, would affect employees’ rights in Wales.

The consultation was initially promised in 2019 as part of the Conversative Party’s manifesto ahead of the general election. It was then delayed due to the Covid-19 pandemic.

The consultation sets out five proposals to reshape the existing framework:

• Removing the 26-week qualifying period to allow employees a right to request flexible working from ‘day one’.
• Changing the eight business reasons for refusing a request, if any of these are no longer valid.
• Requiring employers to suggest alternatives to the requested working pattern, where possible.
• Changing the administrative process (specifically, the rules that allow employees one statutory request per year and that impose a deadline of three months for the employer’s response).
• Raising awareness of the existing right for employees to request a temporary flexible working arrangement.

It is important to recognise that the UK government is only at the consultation stage at present. None of these proposals have been or will be implemented just yet.

But employers in Wales should nevertheless be alive to the fact that any changes would impact the rights of the Welsh working population, 34% of whom worked from home at some point in 2020.

By way of recap, when we talk about flexible working, we are talking about a temporary or (more often) permanent change to terms and conditions of employment relating to working hours, work times, or the employee’s place of work.

Flexible working can (but does not have to) involve ‘home working’, also known as ‘remote working’ (although this term implies that the work can be done from other locations that are not the employee’s home or workplace).

‘Hybrid working’ is defined by the organisation Acas as a type of flexible working where an employee splits their time between the workplace and working remotely.

Flexible working is nothing new. The statutory right for certain employees to request flexible working has been in place since 2003. In 2014, the right was extended to all employees with 26 weeks’ continuous service.

For the avoidance of doubt, this does not mean that anyone with 26 weeks’ service is entitled to work flexibly (or that anyone will have an automatic right to work flexibly from ‘day one’ of employment, if the first of the above five changes is adopted). The right is to request a flexible working arrangement, not to be granted one.

However, the introduction of a ‘day one’ right to request flexible working is bound to attract more applicants requests and, in doing so, will encourage employers and employees to really think about how everyone can be at their most productive while at the same time achieving a healthy work life balance. At the very least, it encourages early dialogue.

Naturally, employers will still be required to deal with requests in a ‘reasonable manner’ and in a way that does not discriminate. The recent case of Alice Thompson v Scancrown Ltd t/a Manors (ET 2205299/2019) is a stark reminder to employers that flexible working requests are to be taken seriously.

This high-profile case has attracted a lot of media attention over the last few weeks. Mrs Thompson’s indirect sex discrimination claim succeeded principally because her request was given short shrift by an employer who placed token reliance on a few of the eight business reasons for refusing the request, without coming up with any alternatives. Mrs Thompson was awarded over £184,000.

Employees clearly value flexible working, not only as a benefit, but as a necessity in many instances. The evidence from recent cases is that women still disproportionately bear responsibility for childcare. This has been brought into sharp focus during the pandemic; the government recognises this and will be looking to its ‘flexible working taskforce’ to consider the lessons learned from Covid-19 and how best to foster a flexible working friendly culture across organisations.

Only time will tell whether the five proposals in the consultation document will be met with widespread approval. Some employment law practitioners feel that they do not go far enough. However, many employers will welcome the fact that they would retain significant freedom to decide what is right for their organisation post-pandemic and how to make the most of the opportunities flexible working has proved it can offer.