The employment relations (flexible working) bill

Much was said about the advent of a ‘new normal’ following the pandemic years, yet in the realm of employment it has proven true. The idea of working flexibly has taken root and employees not only want to change their working patterns to suit their lifestyle, but they realise they can do it without affecting their productivity. Employers are under pressure to accommodate this cultural change. 

The Employment Relations (Flexible Working) Bill is going to add to that pressure. It will strengthen the existing right of employees and other workers to request a change to their terms and conditions of employment relating to working hours, the times when they must work and where they must work between home and the workplace.  Once in force, employees will have the right to request flexible working from their first day in a new role.

Progress of the bill has been swift. Having completed its passage through the House of Commons, the bill reached the committee stage in the House of Lords in June. No changes were suggested, followed by the bill’s third reading stage in the Lords on 14 July. Royal Assent is expected by the autumn.

Employees will then be able to request flexible working from day one of their employment, and have the right to make two requests in a 12-month period, rather than only one.  Notably, it remains the employee’s right to request, rather than a right to have, flexible working and the grounds for refusing a request have not changed. However, employers will be required to consult with employees before rejecting a request.

The right to apply for flexible working was first introduced in 2002. To qualify, employees currently have to have 26 weeks of continuous service for the same employer, and only one request can be made every 12 months. Employers then have a duty to consider the request reasonably and respond within three months. They can only refuse the request for one of seven reasons, listed in the employment legislation, including additional costs, a detrimental impact on quality or performance, or the ability to meet customer demand, and the inability to recruit additional staff, or planned structural changes.

A new norm

Until the lockdowns during 2020-21 imposed by the UK government during the covid-19 pandemic, working from home was not the norm.  In 2019, roughly 5 per cent of the workforce were working mainly from home. Lockdown proved to be the key catalyst for change.  Overnight, the pandemic precipitated a dramatic shift in working patterns for millions of people and by April 2020, nearly half the British workforce (47 per cent) were reported to be working from home.

This enforced home-working provided a perfect test bed for thousands of companies to determine the efficacy of home working. Technology enabled teams spread across the country to connect and collaborate.  Data collected during the pandemic suggest that, overall, people adapted quickly and worked well from home, and that productivity was not adversely affected.

As lockdown restrictions eased, many employees expressed reluctance to return to the workplace and employers had to respond by introducing “hybrid” working arrangements.  

Although the terms are often used interchangeably, “flexible” and “hybrid” working are distinctly different models.  Hybrid working does not necessarily require a change in contracts of employment but can be based on a company policy on how to combine working in the office and working from home. The employer can change the policy as the needs of the business and its employees change. Flexible working, by contrast, is the statutory right to ask for an amendment to the contract of employment as described above. 

Some prominent global brands such as Google, Apple, Dell now promote hybrid working, realising that this has become increasingly attractive to prospective employees. Hybrid working has benefits for employers too as they can reduce the office space they occupy and save significant costs.  The FT has reported that this is having a profound effect on the property market, particularly in business districts like Canary Wharf and the City which are now more vulnerable to changing ways of working than other neighbourhoods.

Other companies including Disney, Starbucks, and KPMG have retreated on workplace flexibility, mandating more in-person days, or a return to full-time office working patterns. In April 2023, JPMorgan Chase asked its managing directors to be in the office five days a week and, according to the FT, warned other employees not to fall short of their “in-office attendance expectations.”

Changing attitudes

It is not possible to generalise about the attitudes of employers towards hybrid working because each business has different requirements. However, a report by the Office for National Statistics in February 2023 on the Characteristics of Homeworkers concluded that fewer lower paid workers and more employees in the professions, service industries and the self-employed work from home. This is not surprising as it is easy for a professional person or an administrator to work from home, but it is impossible for many other jobs.

It is also worth reflecting on the impact that hybrid working will have on businesses. It had to be introduced very quickly when lockdown was imposed, and managing the return to “normal” working patterns has not always been easy. While experience shows that many people can work productively out of the office, a business is not a collection of disconnected individuals, but a collective enterprise.

The risk of having a fragmented workforce is that the enterprise will lose its collective ethos and culture. You cannot have a watercooler moment on Zoom, and it is more difficult to consult with colleagues, or integrate and train your staff if they are not in the office. Furthermore, many people suffered terribly during lockdown and employers are having to cope with a legacy of Covid-related mental health issues.

Some people have found it difficult to return to the workplace and, anecdotally, a generation of young people seem to have lost the ability to socialise. Young people are experiencing unprecedented levels of anxiety and uncertainty about their jobs and their futures. Businesses need to give them a sense of identity and purpose and managing the working environment will be a key contributor to this. 

Independently of what individual companies want to do in relation to hybrid working policies, the Government has supported relaxing the rules on flexible working.  Following a consultation in 2021, they concluded that “there is no one-size-fits-all approach to work arrangements” and that their priority is to set the right conditions to allow employees and employers to explore available options in their particular context.

The impact of the bill will be immediate. Employers will have to be prepared to deal with requests from the moment they decide to recruit a new employee and though a request cannot technically be made before the contract begins, it will inevitably affect the recruitment process.

We are experiencing a sea change in the workplace. Technology is enabling us to work in new and exciting ways that were barely thought of three years ago and, in the meantime, attitudes have changed. The challenge for employers will be to adapt themselves to accommodate the needs and wishes of their employees and to allow them to adopt new working patterns that are attractive to them, while at the same time maintaining productivity and the ethos of their business.

Stephen Morrall is a consultant and Samuel Isaac is a trainee solicitor at Hunters Law