Why flexible working legislation needs to be reformed

The Government is reported to be considering a consultation on flexible working legislation as more of us work remotely. So why does it need to change and how?

Business woman having a video call with coworker


Should employees be given more rights on when and where they work in light of the Covid experience? The question arises this week after reports that there will be a public consultation, led by the Department for Business, Energy and Industrial Strategy, later this year to explore ways to strengthen the existing legal right to request flexible working in the wake of increased remote working during the pandemic.

While the reports tend to highlight the potential downsides of more remote working despite the clear demand for it – whether it be 100% remote or fewer days in the office – flexible working is clearly more than just remote working [and definitely more than Covid remote working] and it is worth returning to the original legislation to understand why reform is urgently needed.

The problem with the current legislation is that it is extremely weak and gives employers almost free rein to reject applications. With no statutory right of appeal [removed in the 2014 update which extended the right to seek flexible working to all employees and not just parents and carers], there is not much you can do if your employer cites any of the fairly vague allowable reasons for rejection. These include agreeing to the request will have a detrimental impact on quality and agreeing to the request will have a detrimental impact on performance. We know that very few employers have been sued successfully solely based on the flexible working legislation. It is usually done in conjunction with other laws, for instance, anti-discrimination legislation.

Campaigners have long been pushing for a request for flexible working to be a day one right rather than people having to work for 26 weeks before they can ask for flexibility. The 26-week rule makes it hard for people who work flexibly in their current job to move to another job unless that role is advertised as flexible or the employer is open to negotiating flexible working. It is not the flexible employers who are the problem, though. There are also calls to make employers advertise jobs as being open to flexible working and a recent trial where employers were prompted to think about whether a job can be done flexibly has shown that this has significantly increased the number of new roles that are advertised as being open to flexible working.

Another issue is the length of time people have to wait before they can change their contract. Currently you have to wait a year before putting in a new flexible working request. That is designed to give employers an ability to plan, but in the current context of hybrid working and fast-moving change, it may not be sufficient. That is why many people prefer to go down an informal flexible route rather than the legal one. The drawback is that if your flexible working is informal it is easier for management to take it away and we have seen numerous examples of that happening, for instance, when a new manager comes in who is not as comfortable with flexible working.

Hopefully, the last year will have seen a change in mindset, but, judging from some of the negative press reports, it may also have hardened the views of those opposed to flexible working, particularly remote working. There is an interesting discussion to be had about whether encouraging remote working contracts introduces a level of inflexibility into flexible working or whether it could be a vehicle for delivering remote workers greater rights. Spain is one country that is currently considering legislation in this area, which would cover everything from the right to digital disconnection to equal treatment with office workers and no salary difference based on where people do their work.

The Food Standards Agency has three types of contracts based on their main location of work – site-based, home-based and multi-location. The aim is to give people a range of choices. Maybe that is one way forward, but what is clear is that the current legislation is outdated and not up to the job.

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