At the time of writing the BBC has a headline that reads “Employees can ask for flexible working from day one.” If by that the BBC intends to convey that an employee’s statutory right to ask for flexible working is now a “day one” right, then the headline is false. The law has not changed, and the headline is misleading (the article itself is not) – an employee has no new rights today to what they had yesterday, the legal right remains that that an employee can first make a statutory flexible working request after being employed for a continuous six-month period. An accurate headline could, at most, say that “employees will be able to ask for flexible working from day one” at some future unspecified date.
What has really happened?
Last year the Government announced a consultation on extending the right to request flexible working. All that has happened today is the government (The Business, Energy and Industrial Strategy Department – BEIS) has published its response entitled Consultation on Making Flexible Working the Default.
The key conclusions of the consultation are that:
- Employees will have a right to request flexible working from day one of their employment. Despite the language of default there is no presumption of being able to work flexibly, instead “it is important that the legislation remains a right to request, not a right to have.” (9).
- The government proposes to maintain the status quo on allowing an employer to reject a flexible working request for one of the eight statutory reasons (12).
- There will be a new requirement to formalise the requirement in the ACAS Code on flexible working to require an employer to consult with an employee if they are proposing to refuse an application (13-14).
- The current limit of one statutory request being permitted in a twelve-month period will be changed to allow two requests in a twelve-month period, presumably one every six months (16).
- The current three-month time limit to make a response is also to be reduced, but the specifics are entirely vague in the response. Elsewhere, a time limit of two months has been suggested. (15-16).
At present, these are only statements of intent. Previous form would indicate we will not see any actual legislation for the foreseeable. However, two factors suggest this will not be the case here. First, most of the changes would not require any change of primary legislation as all the changes are covered instead by secondary legislation. As such, this should be much easier, and require much less parliamentary time to change so an imminent change is certainly not out of the question. The proposal is entirely in line with the Labour Party’s 2019 commitment, although much less meaningful. Since, under Starmer, Labour has been keen to distance itself from Corbynism I am not sure whether that fact will make Labour support less likely, but it is difficult to see any real opposition to the proposal on the non-Tory side of the House. It therefore comes down to a government decision to actually follow through on its commitments and introduce amended secondary legislation – time will tell whether the commitments it has made today are more substantial than hot air.
Second, the report does however indicate that some primary legislation will be required (20) but is supporting the Private Members Bill of Labour’s Yasmin Qureshi – namely the Employment Relations (Flexible Working) Bill) – which, presumably will be the vehicle through which these changes will be made.
Despite the title (Making Flexible Working the Default) the approach does not make flexible working “the default” at all, and in this way does differ from Labour’s 2019 commitment (referenced in previous section) – that is regrettable and shows the disconnect between the substance of the right and how it is portrayed in the headline documents. There is a good case that there should be a rebuttable presumption in favour of flexible working – but this has been rejected despite the consultation’s title and the spin.
That will still be a problem for new recruits. If the right to request is a day one right then it will still be up to two months into a contract before the position is decided – two months of inflexible work – that is likely to have a chilling effect on workers taking up new employment as it will always be a leap of faith.
It is notable that the current position whereby an employee has no enforceable right to bring a trade union representative or fellow worker into a formal meeting remains, and this will (presumably) just remain an ACAS ‘best practice’ recommendation. Although, in my view, there may be scope to still enforce the right in appeals on the basis that this is also a grievance meeting so that it comes with the right in section 10 of the Employment Relations Act 1999).
There has been a (welcome) trend recently of extending rights of employees to UK workers either following the Taylor review (see rights under section 1-8 of the Employment Rights Act 1996) or following union legal challenge (such as Health and safety rights for workers during Covid).
The government’s response has stopped that relatively minor realignment of worker and employee rights in its tracks. There is a stated policy to make flexible working the default position, but clearly that only apples to employees in BEIS’ opinion. A worker remains excluded from any such policy default. That is inequitable and only serves to cement the rights divide in the UK, for all the talk about this being a family friendly, carer and disability friendly move this is of no benefit to workers who, one suspect are more proportionately affected by such issues than employees. This means that any worker seeking to assert a right to work flexibly must rely on either an employer’s generosity, a strong union organisation, or reliance on either agency worker or anti-discrimination arguments.
That is a major problem with the proposal but, despite that, the policy, if implemented, is an extension of flexible working rights and is a welcome change. However, experience has shown that there are frequent promises of action on employment rights but little corresponding legislative action to the point that the Government’s promise of an Employment Bill has become a long running joke. While legislation remains outstanding the legal position for those making flexible working requests is unchanged and applications will need to be considered under current law. Nonetheless, union reps and employees may find the Government’s response with its promise of legislative action useful to refer to in current requests, especially when the employer is a central government employer.
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