New flexible working rights: mere 'tinkering' and likely to lead to 'long delays' at tribunal?

The legal profession has cautiously welcomed the government’s plans to give all employees in Great Britain the right to request flexible working on ‘day one’, and introduce new entitlements for unpaid carers.

However, while seen a positive step overall, some members of the profession have questioned whether the changes go far enough – and whether claims related to the new rights will overwhelm already backlogged employment tribunals.   

Kingsley Napley LLP senior associate, Moira Campbell, said: “Any plan to bring workplace legislation into line with modern working practices is to be welcomed although, in effect, this is tinkering rather than wholesale change. 

“Flexibility over time and place of work is the new reality for many post-pandemic. So, levelling the playing field for everyone to have the right to request this from day one must be a good thing and represents progress of sorts. However, it is still up to employers whether they grant requests and so long as they have clear and justifiable business reasons for refusing they can avoid complaints of discrimination and victimisation”. 

The proposals also consider whether limiting the right to request flexible working to once per year “continues to represent the best balance between individual and business needs”. The government will also look at whether the three-month time period an employer has to consider a request should be cut.

Employers will need to consider alternative options if they are unable to accommodate a request – for example, introducing the change on certain days instead. Businesses are still permitted to reject requests for flexible working if they have “sound business reasons”. The government said it will “respect freedom of contract” and will not seek to prescribe specific arrangements in legislation.

Campbell said the “more radical vision” of giving employees the right to work flexibly “is still some way off it seems”, however, she said we could “expect the clamour for this will continue to grow”.

She added: “The idea of cutting the three-month limit an employer has to consider any request, in addition to reviewing the current limit on employees making only one application per year, should perhaps be seen in this context”. 

Commenting on the new rights for carers, she said: “The introduction of a day one right to one-week’s unpaid leave for carers is a bolder step and whilst welcome by many, will no doubt be a difficult one for smaller employers to stomach. Again the risk of discrimination claims will need to be carefully considered when hiring new staff with caring responsibilities.”

Law Society president, Stephanie Boyce, said: “We welcome the decision to give employees the right to request flexible working from day one of a new job. Employees may need to work flexibly for many different reasons and have demonstrated throughout the pandemic their ability to do so successfully”.

However, she also raised concerns about the risk of employment tribunals becoming overwhelmed with cases off the back of the changes: “If a flexible working request is denied, workers may be able to make an employment tribunal claim. However, the backlog in the employment tribunals mean they may face long delays in having their claims heard. Investment is needed to ensure timely access to justice.”