While legislation that strives to improve working conditions for everyone is undoubtedly positive, the Flexible Working Bill does not do enough for employees or their employers.
The new Flexible Working Bill was passed through its third reading in parliament on Friday 14th July, meaning it will now become law.
The new Flexible Working Bill: a summary
Currently, all employees who have 26 weeks’ continuous service have a legal right to request flexible working. They can make one flexible working request a year, and employers have three months to respond to any such request.
However, under the new legislation, employees still need to have 26 weeks of continuous service before they have a legal right to make a request. They do not have the right from day one, as was outlined in proposals, though the Government has indicated that it will create day one employment rights through secondary legislation.
Employees can now make two requests in 12 months and the timescale that employers need to respond has been reduced to two months.
Danielle Ayres, Employment Law Partner, feels that while the new Bill is a step in the positive direction, it “doesn’t go far enough for employees or employers”.
“The new legislation not only marginally improves the opportunities for employees to make flexible working requests, but also could leave employers open to indirect sex discrimination claims.
“Ways of working have evolved rapidly over the past few years and the new Flexible Working Bill is a positive step in the right direction to accommodate the changing needs of the modern workforce. Employees will now have increased opportunities to make a flexible working request in a 12-month period, but the lack of procedural requirements from an employers’ perspective may leave them open to grievances if the right procedures aren’t in place or followed.
“The Flexible Working Bill still doesn’t require employers to offer a right of appeal if a flexible working request is rejected, something which is recommended in the ACAS Code of Practice on Flexible Working.
“The bill also offers little clarity on the level of detail required in the employer’s consultation of the employee following the outcome of the request. There is no legal standard given on the requirements of this consultation and employers do not need to offer substantial information or cover alternative offers available. Employers could, in theory, reject requests and offer little information to the employee as to why, then shoe-horn their rejection into one of the statutory reasons.”
New Flexible Working Bill could leave employers open to discrimination claims
According to Danielle, the Bill not only doesn’t go far enough to protect employees’ needs, but could also leave employers open to discrimination claims:
“Tribunals recognise that women are more likely to take on childcare responsibilities than men and that this can impact the hours that they are available to work. Sex is considered a protected characteristic under the Equality Act, so a rejection of a flexible working claim – particularly in relation to a woman trying to juggle childcare – without proper consideration and evidence, may leave employers open to legal claims, as we see currently.”
What should employers do when considering flexible working requests?
Employers should properly consider flexible working requests. Whilst it is not a legal requirement to properly consult employees on any outcome, taking the time to speak to them about how an employer has arrived at that decision, and the process and thought they have applied when dealing with and considering their request is a small step that can be taken to help minimise risk.
Ensuring management teams understand the implications of flexible working decisions and how to handle the same correctly is also hugely important.
According to the Flex For All campaign, 83% of women who work flexibly have experienced discrimination or disadvantages at work – they are often not offered or considered for the same benefits and opportunities, such as promotions, as others. By asking for flexible working and it being turned down, women often have to give up work, meaning that skilled and qualified individuals have to drop out of the workforce completely, sometimes for many years.
Legislative changes that offer a framework for both employees and employers to properly consider these requests and putting them into practice will help both parties to work together and help to shift negative perceptions of flexible working.
Danielle concludes by saying:
“For many, flexible working is an attractive perk, but for those who have commitments outside of work it offers a fundamental way for employees to excel in their roles, whilst continuing to work – something that is beneficial to both employee and employer.
“Only with clear legislation can both employees and employers truly unlock the potential that is offered by more accommodating flexible working as part of their status quo.”