Flexible Working Bill unlikely to bring end to discrimination claims

A key issue with the text of the government’s new Flexible Working Bill arises from employees still only having the right to request flexible working arrangements from their employers, rather than a right to have these arrangements put into place from day one. Also relevant is that in a post-covid world, flexible working does not present the challenges on a practical level that it did in the past.

Despite the easing of the burden on employees by removal of the requirement for an employee to make a ‘business case’ for a change to flexible working, employees are still at the mercy of management, who maintain the ultimate right to turn down such a request – for example for amended working hours, or working from home etc. Under the terms of the proposed changes, there is not yet enough guidance on how employers should assess requests. This could mean employees may still be brushed aside by employers who do not wholly understand or wish to support flexible working.

In the absence of such detailed guidance from the government, it is more than likely that there will be a substantial increase in claims to employment tribunals from workers who consider that their flexible working requests have been inadequately dealt with by their bosses. The government has confirmed legislation will be forthcoming, but we have not had this yet. As well as a lack of guidance on how to consider requests, there are insubstantial and unnecessary additions that will arguably have little effect on workers’ lives: an entitlement to make two requests in any 12-month period, and a reduction in the time for an employer to respond from three to two months.

The bill also misses what would have been a significant change: the ability to make requests from day one of employment. It is critical that this change is introduced by the government, since it is employees, such as parents or carers starting new jobs, who need flexible working, for example to make sure that they will be able to manage their childcare from the outset of their new job. It makes no sense for them to be forced to wait until they are six months into their role before being able to request flexibility.

A secondary consideration on the subject is that employees who are six months into their employment will probably have developed enough rapport and understanding with their employer that they are likely to get their request accepted anyway. It is thus imperative to focus on the first six months and ensure that employers are supportive in those early stages too.

The government has touted the Bill as being of significant assistance to disabled individuals. However, disabled employees derive better protection from their rights to ‘reasonable adjustments’ in their employment contract and in the workplace than they do from flexible working requests. As such, the benefit to disabled workers from the Flexible Working Bill is of less value than the government maintains, and acts as something of a fig leaf to hide the core deficiencies of the proposed changes to the current flexible working legislation.

In terms of day-to-day life and the changes this bill could mean to people, it is also important to assess the impact of the cost of living on people’s work lives. Many employees now work multiple jobs to make ends meet, with these supplementary roles often referred to as ‘side-hustles’. As a result of this trend, it is likely that many workers will ask for flexible working conditions in order to accommodate their other jobs. If that proves to be the case, employers will need to consider other factors as well, since most contracts preclude employees from having multiple jobs at a time. This therefore means that accepting such a request for flexible working would need to be within the terms of contract or, alternatively, that the existing contract is amended to make provision for such a change. Again, clearer guidance from the government would go a long way to clarifying matters for both employers and employees.

Hina Belitz is a partner and specialist employment lawyer at Excello Law.