Labour Party to promise new flexible working rights

The whole strategy of political parties briefing on what a politician ‘will say’ and the media reporting on what is just a PR exercise is something that infuriates me rather than, you know, wait until the politician has made their speech and then reporting on that.

With that in mind what follows will strike readers as somewhat hypocritical – guilty as charged!

It is reported that Dawn Butler, Shadow Minister for Women and Equalities, will commit that a Labour Government will reform current flexible working rights. Under current legislation any employee  who has worked for an employer for 26 weeks can make a statutory request and have the right for that request to be reasonably considered (although it can, and often is, refused), and only one request may be made per year.

Much reporting of Labour’s legislative commitment focuses on the pledge that instead of the qualifying period of 26 weeks the right will be a ‘day one’ right. This emphasis has drawn some kneejerk criticism that it is a tinkering around the edge and does nothing to address the core issue that there is no right to work flexibly, just the right to request it. The criticism of Stefan Cross QC is indicative of this trend.

I am very conscious that I am relying on press briefings and have seen nothing but the BBC report suggests there will be at least three aspects of the policy, some of which point towards Labour having a substantive right to work flexibly in mind and having this much more accessible without needing the recourse to the law.

First,  there is the the suggestion that the right to request becomes a day one right. If this were all that was proposed then I can see some merit in the pusillanimous allegation, although it would be churlish not to recognise that attaining a right – even if not an especially valuable right – at the very beginning of one’s employment is a step forward. In itself though this is not a major step forward as unless backed up with significant anti-avoidance mechanism (I am think here of punitive compensations awards for breaches) it is not hard to see that most employees will be dissuaded from exercising that right given they are in a new job and potentially not secure since still subject to a probationary period.

Second, we are told that Labour would create a “presumption in favour of flexible working,” presumably a statutory presumption. It is unclear precisely what this would mean, it may mean that every employer would be under a statutory duty to ensure that, unless unfeasable, every post was actually available to be worked flexibly. Alternatively, it could mean that in the event of a flexible working request there is a statutory presumption that the request should be accepted unless that presumption was rebutted and so make the enforcement of flexible working working rights in the employment tribunal more effective. Or both.

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The signs are that this is a positive move that if implemented will be positive for all employees. What is not clear yet is whether, as the current rights are, the right to flexible working will remain the preserve of employees only and whether Labour will retain the thoroughly iniquitous employee/worker distinction that would prevent many workers exercising these rights.

Third, another interesting aspect of this the focus on women’s equality in the workplace. Butler is reported to say that “this change to the law is essential to closing the gender pay gap and dismantling the structural barriers that hold women back from promotion and progression.”

The reason I say this is interesting is because in terms of enforcing rights to flexible working women will often find themselves able – because of systemic sex bias in society towards women caring for children and disabled relatives – to pursue flexible working refusals not only under the pretty ineffective remedies under flexible working legislation but also as a indirect sex discrimination claim that is often less likely to apply to men seeking to enforce flexible working rights. This means that insofar as enforcing flexible working rights (and in this respect only) many women who do need flexible working for caring reasons are at an advantage.

My assumption is that Labour think that, if enacted, then women will not need to enforce these sex discrimination rights as far more requests will be granted at first instance so they will no longer be at a particular disadvantage – this certainly seems the thrust of the very bold assertion of Butler’s that under “Labour’s plans, no woman will be shut out of the workplace because they’re a mum or they care for a parent or a disabled loved one, or both.” If that proves to be the case then it will be a success.

The related consequence and one that deserves more emphasis is, as Butler says, that the policy “may also result in more men taking on caring responsibilities themselves, finally lightening the load that women bear.” Of course, if that is a policy aim – and I see no reason why it shouldn’t be – then the next appropriate policy to be looked at is whether there should be equality of rights in respect of may be enhanced pay for both maternity and paternity leave.

Still, with all the recent acrimony it is good to see some coverage of the work Labour is doing to improve the lot of working people and their families.