Making Flexible Working the Default – UK Government Consult on Future of Flexible Working for Employees

by | Sep 24, 2021 | Blog

A few months ago, I wrote a piece about whether we’d be looking at more permanent working from home situations. At the time, I refer to the Government’s intention to consult on the area.

The government has now published a consultation document, Making flexible working the default, proposing various reforms to the right for employees to request flexible working, taking into account changes in working practices brought about during the COVID-19 pandemic. 

The proposals do not introduce an automatic right for employees to work flexibly.

Instead, the proposals include a number of measures to broaden the scope of the right, while retaining the basic system involving a conversation between employer and employee about how to balance work requirements and individual needs. The main change would be making the right a “day one” right, removing the requirement for 26 weeks’ qualifying service. The consultation also considers: 

  • Making changes, if necessary, to the eight business reasons for refusing a request to work flexibly.
  • Requiring the employer to suggest alternatives to the arrangement suggested by the employee.
  • Changing the administrative process underpinning the right to request flexible working. In particular, the government wants to explore whether to allow employees to make more than one statutory request each year.
  • Raising awareness of the existing right of employees to request a temporary flexible working arrangement

The government has decided not to proceed with the proposal, put forward in an earlier consultation, to introduce a requirement for large employers to publish their flexible working policies.

For what it’s worth, my view is that employees should be able to request flexible working – and I would go so far as to say make a specific “working from home” request as well – but I would probably only allow that after the probation period imposed by an employer (to be no more than 6 months).

Meanwhile The Labour Party announced what they might do were they ever to get to power.

Sir Keir Starmer, talking at the trade union TUC Conference, announced proposals to give all workers protection from unfair dismissal as well as “bolstering” employees rights generally. The plans include:

  • Immediately increasing the minimum wage to at least £10 an hour, which would mean a pay rise of around £2,500 per year for those on the minimum rate
  • Giving workers day one rights including holiday pay, protection against unfair dismissal, paid parental leave, flexible working and guaranteed sick pay
  • Increasing statutory sick pay
  • Banning zero hours contracts and require employers to give staff a contract that reflects their normal working hours
  • Outlawing “fire and rehire” practices, where workers are dismissed and rehired on new contracts with new less favourable terms

Personally, as an employment lawyer for business (primarily), I have some issues with some of these proposals.

Currently, to claim unfair dismissal, an employee needs to have been working somewhere for 2-years. When unfair dismissal was first announced by a Labour Government, it was 1-year service. In simple terms, it means that within the first 2 years of an employee’s contract, they can be dismissed for almost any reason (except ones relating to discrimination/equality) – performance is generally the reason giving.

2 years always felt long for me, even as someone advising businesses, and I can see the balance needed to protect employees as well as employers. I think 1 years service ought to be sufficient.

But making it available from day one is, in my view, unworkable and is likely to create a massive extra burden on an already stretched Employment Tribunal System. It would give the right for an employee to make a claim straight away – seeking compensation for being out of work even if they were only in work for a week.

It just doesn’t work for me.

Some of their other points (without getting political here) seem sensible; currently to get things like paid parental leave an employee has to have worked somewhere for 26 weeks. Again, that’s really to stop someone joining and then going off the next day. I can see why that might be beneficial to reduce it down, but making it apply from day one again seems like a potential minefield of litigation, grievances and unhappiness.

I do however absolutely agree on an increase to minimum wage even though many of my clients won’t like me for saying so – they will say that all that happens is costs increase, prices increase and therefore we the consumer end up paying for it. I don’t mind doing that as long as that is what happens and not a higher profit.

As for “hire and fire” policies, I have to agree. I think these plans that (typically) larger employers put in place are usually unfair and should not be part of UK employment law.

What are your thoughts on all this? Let me know below or on social media.

Need employment law advice?

Get in touch today if you or your business needs expert employment law advice. Whether you have people requesting flexible working, or an unfair dismissal claim, get in touch.

Call Steven today: 0116 3667 900


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