The Labour party has unveiled new plans for making flexible working “a force for good”. This focuses on the right for employees to work flexibly as a default from day one of employment, including flexi-hours and an end to supposed one-sided flexibility that favours employers.
While such proposals are extremely relevant amid a climate of new ways of working, they aren’t necessarily needed. Suggested changes could inadvertently erode the flexibility of different job roles beyond full-time employment.
Under current legislation, employees who have 26 weeks' continuous employment have the right to request to work flexibly. This right, among other things, covers amendments to start and finish times and also includes homeworking requests.
While employees already have access to many of the flexible working rights that Labour is proposing, the biggest proposed change would be the ability for staff to request to work flexibly from day one of employment, as opposed to having to wait 26 weeks. If this new timing was made the default position it may make it more difficult for businesses to practically accommodate varying flexibility requests from all employees.
If it becomes impractical to balance flexible working, it could risk making some roles unviable, which could then limit the offer of part-time job opportunities. This could prove unfavourable for people who, because of other commitments, are unable to work full-time. Beyond making flexible working the default from day one, Labour’s plans also call to end one-sided flexibility, so that all workers have stable, secure employment and mutually-agreed predictable working hours.
When a request for flexible working is made, employers must deal with that request in a reasonable manner and notify the employee of the outcome within a three-month period. A company can reject a request for flexible working, but in doing so would need to demonstrate valid business reasons such as an impact on operating costs, detrimental impact on performance and operation, and the inability to reorganise work among existing staff.
It could be argued that changes should be made to reduce the three-month timeframe that employers currently have to review requests. Although, if this was the case, it would be more questionable as to whether companies have sufficient time to properly consider the business case for how a flexible working application could work. A lack of proper consideration is likely to prove detrimental to both employees and employers.
If we want flexible working to be a force for good, it is perhaps worth harnessing the agility demonstrated by staff and companies during the pandemic and building from here, instead of calling for legislative changes. Many employees and employers have found new ways of working beyond the traditional nine-to-five, workplace-based role. This has been achieved through all parties working together, which is a more effective way to embrace flexibility rather than making it the default.
Jennifer Smith is a partner in the employment law team at Forbes Solicitors
