The Government have, it has to be said, a rather schizophrenic approach to flexible working. On the one hand they are keen to promote it as this is an obvious vote winner (and Sir Keir Starmer is in favour of it too) and then, on the other, they are quietly concerned that flexible working – especially working from home – is a drag on productivity and a very keen to get as much of the population as possible back into the workplace, undertaking a full week’s work.
So, it is in the context of this dilemma that the Employment Relations (Flexible Working) Bill achieved Royal Assent on 20 July. This is a law that will allow employees to make additional requests, over and above those which they are currently able to make under the existing flexible working structure.
Initially the right to ask to work flexibly was the domain of parents looking after children or caregivers needing to balance a working life with the needs at home. In due course, this was extended to all employees with at least 26 weeks of continuous service.
The criteria were that the individual was an employee, with half a year’s employment under their belt, that the request must be in writing and only one such request could be made in any 12 month period. In addition, the employee was also required to think about, and state, how they thought such a request would impact upon the employer.
Employees could then request any arrangement they wanted: part-time, term-time, flexitime, compressed hours, job share, working from home etc. In turn, the employer had an obligation to consider the request properly and give a valid business reason for adapting or rejecting the request. Oh, and they had three months in which to complete this process.
The system was clunky, to say the least.
The new legislation is designed to make the whole system quicker and open to all employees. Gone, is the requirement to have worked 26 weeks – now individuals can ask for flexibility from Day One, two requests can be made a year and a decision is required from employers within two months. A consultation process will also now be required which will not include the employee having to explain how they think their request will affect the employer.
So, will this new law make any difference?
Quite frankly, the old system never really worked very well. Those wanting to work flexibly would normally approach the employer and either the employer was sympathetic to their request or not. If they were, then changes would be made. If not, then the filing of an FW1 (the form to start the process) would be the start of a feet dragging exercise with an ultimate rejection on grounds of business needs.
Therefore, shortening time scales and having a conversation are unlikely to convince the reluctant employer to act any differently. If anything, all that will happen is that employers will fail to undertake the steps necessary to consider such requests properly and any such claims will be added to an unfair or constructive dismissal claim. Yes, stand alone applications can be made to the Employment Tribunal and the remedy is up to eight weeks’ pay (capped at £643/week). However, with less than 200 such claims made a year (and these may well be part of multiple claims), it appears that few have the appetite to pursue such actions.
Let’s see what happens in 2024 when the legislation comes into force.