Legal perspective: Is flexible working here to stay?

Legal perspective: Is flexible working here to stay?

Employers now fined if they allow workers to breach self-isolation

Legislation could enshrine the right to request flexible working in law

The tech sector is widely viewed as one of the most progressive, flexible sectors within which to work.

With reported perks such as unlimited holiday, working abroad and flexibility around core hours, it unsurprisingly appeals to employees looking to achieve a good work-life balance.

The sector is also expanding rapidly as a result of society's increasing reliance on technology and the significant investment of just under $41bn into UK tech companies in 2021 . In fact, more than two million tech vacancies were advertised between May 2021 and May 2022, nearly double that of any other sector.  

However, with a labour market in flux, redundancies rife and attitudes shifting back to 'normal' post-pandemic, some tech companies are increasingly keen to see their staff coming into the office. But in a sector famous for its progressive attitudes towards working, how can this be done?

Can employees be forced to come into the office?

Employees have to comply with reasonable instructions from their employer and, if their employment contract states that the 'office' is their place of work, there is a good argument that they can be required to work from there.

However, the reality is that employees who are unhappy with a unilateral decision to reinstall full-time office working may be vocal, submit grievances or employment tribunal claims, and may even leave the business. Employers should also be alive to potential discrimination issues - in particular disability discrimination - that could arise, depending on the reasoning behind an employee's reluctance to return to office-working.

Therefore, careful communication is key and consulting with employees about how and where they want to work is likely to be instrumental in retaining a happy and motivated workforce.

Many employers trying to tread the line between home and office working are currently implementing hybrid working models. For now, these feel more suitable and appear to balance the benefits of social interaction and teamwork with the cost and time spent by employees commuting. Whether or not these hybrid models will become a permanent fixture of working life remains to be seen - but it seems likely.

What happens if an employee makes a flexible working request?

Employees who are unhappy with an instruction to work from the office could submit a flexible working request. This is a request to make a permanent change to their terms and conditions of employment, for example to work from home for specified days every week, or to adjust their start and finish times. 

Employers do not have to approve employees' flexible working requests. In fact, there are eight legally permitted grounds for rejecting a flexible working request, including the inability to recruit additional staff and the burden of additional cost to the business.

However, the government has committed to supporting a Private Member's Bill that will enhance employees' rights when making a flexible working request. This bill, known as the Employment Relations (Flexible Working) Bill (the bill), is currently making its way through Parliament, and reached Report Stage in the House of Commons last week (24th February 2023).

Changes proposed in the Employment Relations (Flexible Working) Bill

If the bill becomes law:

  1. Flexible working will become a day one right that all employees can request. It is currently only possible to make a flexible working request after being employed for 26 weeks.
  2. Employees are no longer required to set out as part of their request how their employer might deal with the effects of their flexible working request. Employees making a request on the first day of their employment will not have the knowledge to understand the impact the request will have on the employer.
  3. Employers will be required to consult with employees to explore available options before rejecting a flexible working request - although the eight grounds for rejecting a flexible working request will remain the same.
  4. Employees will be permitted to make two flexible working requests in a 12-month period as opposed to just one.
  5. Employers must respond to a flexible working request within two months as opposed to three. 

The government has also committed to develop guidance to raise awareness and understanding of how to make and administer temporary (as well as permanent) requests for flexible working, and to call for evidence on how informal flexibility works in practice.

What does this mean and how can employers prepare for the changes to flexible working legislation?

Given the government's support of the Bill, it seems likely these flexible working rights will become law.

Therefore, if they haven't already, employers should be considering how feasible it is for their employees to work flexibly - whether that means working from home, working in a hybrid fashion or varying their hours.

Early consideration of how commercially viable these options are will help prepare the organisation for employees' individual flexible working requests and ensure a level of uniformity in the way requests are responded to.

However, it's important to note that requests should still be dealt with on a case-by-case basis, as employees' roles and reasons for making flexible working requests will vary. Where the employer believes a role cannot be modified as requested, this will need to be made very clear, with appropriate reasoning and evidence to support it.

It would also be sensible for employers to review their policies in light of the potential changes, particularly in relation to recruitment as discrimination risks might arise if asking employees at interview (or after they have accepted an offer) whether they intend to make a flexible working request. This could involve issuing updating training for individuals involved in the recruitment process.

This article was first published in Computing and can be accessed here

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