When our current statutory right to request flexible working was introduced in 2014, the world of work was a world away from post-pandemic 2021. This statutory scheme permitted employees with at least 26 weeks' continuous employment to request flexible working. Only one request can be made in any one 12 month period and the employer is required to do the following in response; deal with the request in a "reasonable manner" and only refuse for one or more of the eight reasons given (the burden of additional costs, detrimental effect on ability to meet customer demand, inability to reorganise work among existing staff, inability to recruit additional staff, detrimental impact on quality, detrimental impact on performance, insufficiency of work during the periods the employee proposes to work and planned structural changes). Given the range and vagueness of the permitted reasons for refusals, anecdotal evidence suggests the scheme did not usher in swathes of flexible workers in all sectors and industries across the UK. Fast forward to 2021 and there is a growing demand for an overhaul of our working patterns and the 2014 statutory scheme.
On 18 June 2021, the TUC published their report, The Future of Flexible Work, calling for the Government to set out a strategy for the future of flexible working suitable for a post pandemic workforce and one which would reduce the inequalities in the existing scheme. Their report noted that pre pandemic, the most popular form of flexibility, flexi-time, was unavailable to nearly two thirds of people "in working class occupations". A similar picture is seen for requests for homeworking; whilst the pandemic demonstrated how many employees could successfully work from home, many were still unable or not allowed to do so. Again, these were in "working class occupations". The TUC warns against a real risk of a "class and geographical divide being created between the flexible working haves and have nots".
Not to be outdone, the Government announced its plans to consult on flexible working just one day before the TUC report was published. The proposal to consider whether flexible working should be a default option, unless good reasons not to, was a 2019 Election Conservative manifesto promise reiterated in the 2019 Queen's Speech. Fast forward a week or so and we learn that on 30 June, a cross party Bill has been proposed to Parliament that all workers have the right to flexible working from day one of their role and to ensure employers advertised flexibility in job adverts.
- the current system may be "past its sell by date" but it is still in force
- continue to follow this statutory process where applicable but be prepared to consider all requests objectively and mindful of the TUC concerns as to inequalities
- whilst working patterns may have worked during the pandemic i.e. home working etc. the right to continue those patterns after lockdown and as businesses open up is not a right of the employee - employers are permitted to request "normal service" resumes and advise employees how to go about changing their working patterns should they wish to do so
- watch this space! we think it highly likely that the Government will publish some strategy for the future of flexible working and make some changes to the current system - when that will be is not so easy to predict!
For a discussion about how flexible working requests should be addressed in the context of post pandemic working in education, it is not too late to join us for our virtual round table on 6 July 2021 at 09:30. Please click on the following link for more information and to register: Hybrid working in schools.
The government must set out a strategy on the future of flexible work and its integral role in shaping a better and more equal recovery for workers following the pandemic.