How a forthcoming UK law might boost hybrid working

It seems that the work-from-any­where work­force is here to stay in the UK for the fore­see­able future, giv­en the ongo­ing risks of fur­ther Covid vari­ants and waves of infec­tion, cou­pled with skills short­ages in many indus­tries. That’s only because many employ­ers have cho­sen to allow some form of remote work­ing to con­tin­ue after the relax­ation of lock­down restric­tions. Not all organ­i­sa­tions have done so – and employ­ees have very few legal rights to demand that they offer such flex­i­bil­i­ty. 

Although it was intro­duced in late 2019, the employ­ment bill that’s cur­rent­ly before Par­lia­ment is unlike­ly to be enact­ed any time soon, as it wasn’t men­tioned in the lat­est Queen’s Speech. But, once the changes pro­posed with­in it are final­ly in the statute book, could this give employ­ees more of a say in where and when they work?

A sig­nif­i­cant change that’s been under con­sid­er­a­tion dur­ing the bill’s con­sul­ta­tion peri­od is to allow recruits to request flex­i­ble work­ing from the start of their employ­ment. At present, only employ­ees with at least 26 weeks’ con­tin­u­ous ser­vice have the legal right to ask their employ­er to pro­vide it.

“One of the aims of the bill is to give employ­ees more con­fi­dence and nego­ti­at­ing pow­er to request agile work­ing, enabling them to per­form their role flex­i­bly from the out­set,” says Rhys Wyborn, a part­ner and employ­ment law spe­cial­ist at Shake­speare Mar­tineau. “It won’t grant employ­ees an auto­mat­ic right to work flex­i­bly, but they will be enti­tled to request to do so imme­di­ate­ly upon start­ing their new role.”

Once enact­ed, the bill could change the legit­i­mate busi­ness rea­sons for refus­ing a flex­i­ble work­ing request that are list­ed in the Employ­ment Rights Act 1996. There are eight of these, includ­ing the extra cost bur­den that allow­ing such a request would impose; an inabil­i­ty to reor­gan­ise work effec­tive­ly among the applicant’s col­leagues and/or recruit more peo­ple to do any extra work cre­at­ed; and a detri­men­tal impact on per­for­mance and respon­sive­ness to cus­tomer demand.

The leg­is­la­tion could also require employ­ers to come up with alter­na­tive arrange­ments where appro­pri­ate, notes Deb­bie Coyne, senior asso­ciate in the employ­ment team at Aaron & Part­ners. 

“This would encour­age par­ties to coop­er­ate to find a com­pro­mise, there­by pro­mot­ing a stronger work­ing rela­tion­ship,” she says. “For exam­ple, an employ­er could look to make a change for eight months if it can’t sup­port a per­ma­nent switch, or it could sug­gest an alter­na­tive flex­i­ble pat­tern to that pro­posed by the employ­ee.”

What will these pro­pos­als mean for hybrid work­ing? Coyne says: “While they are like­ly to encour­age employ­ers to think more open­ly about flex­i­ble work­ing and encour­age a two-way con­ver­sa­tion, they don’t make flex­i­bil­i­ty the default posi­tion or cre­ate an enti­tle­ment to it.”

Min­is­ters have said that the leg­is­la­tion in ques­tion will be intro­duced when par­lia­men­tary time allows, so next year is a pos­si­bil­i­ty. But change could be achieved through small­er vehi­cles, such as gov­ern­ment-backed pri­vate mem­bers’ bills.

Labour MP Tulip Sid­diq has put for­ward such a bill, which had its sec­ond read­ing in the Com­mons on 6 May. Her flex­i­ble work­ing bill pro­pos­es to give work­ers the right to flex­i­ble work­ing from day one (except in excep­tion­al cir­cum­stances) and require employ­ers to offer flex­i­ble arrange­ments in employ­ment con­tracts and men­tion in their job ads the types of flex­i­bil­i­ty they could sup­port. Few pri­vate mem­bers’ bills become leg­is­la­tion, but they can indi­rect­ly affect what does get enact­ed by high­light­ing issues of con­cern.

“The specifics of what all this would look like in prac­tice are not fleshed out,” stress­es Christo­pher Hitchins, man­ag­ing part­ner and employ­ment lawyer at Kat­ten Muchin Rosen­man UK. “For exam­ple, will it be hard­er than it is under the cur­rent law for employ­ers to refuse a flex­i­bil­i­ty request? Will they be sub­ject to sanc­tions if they do? We don’t know yet. But it does seem clear that there is a move­ment to nudge the exist­ing law on flex­i­ble work­ing, which was ini­tial­ly brought in to help work­ers with child­care respon­si­bil­i­ties and then broad­ened to cov­er all employ­ees. This would con­tin­ue the trend of revis­ing the leg­is­la­tion in line with devel­op­ments in prac­tice.”

Once the employ­ment bill does become law, it won’t tech­ni­cal­ly trans­fer pow­er from the employ­er to the employ­ee. Requests will be sub­ject to the needs of the busi­ness and, as such, the employ­er will retain the final say. But Pieter Man­den, head of trust and employ­er com­pli­ance at HR tech provider Work­Mo­tion, argues that the forth­com­ing act will affect the bal­ance of pow­er in the work­place.

“There will be a lim­it­ed num­ber of jus­ti­fi­able rea­sons why an employ­er can deny a request,” he says. “Clear­ly, ‘want­i­ng peo­ple to work in the office so that their man­agers can watch over their shoul­ders at any time’ is not includ­ed among them. In my view, an employ­er that’s going to put its foot down about flex­i­ble work­ing is more like­ly to shoot itself in that prover­bial foot. At some point, its employ­ees will vote with their feet and join organ­i­sa­tions that have adapt­ed to the new real­i­ty.”

Giv­en that hybrid work­ing is becom­ing well estab­lished and the tight recruit­ment mar­ket is weighed in their favour, job­seek­ers should feel more con­fi­dent about nego­ti­at­ing how and where they want to work before they join an employ­er. They would be bet­ter off doing this than accept­ing an arrange­ment that doesn’t suit them and then ask­ing to change it on day one in the job.

Accord­ing to a sur­vey pub­lished last year by recruit­ment web­site Reed.co.uk, the abil­i­ty to work flex­i­ble hours has become the sec­ond-biggest fac­tor after a pay increase moti­vat­ing peo­ple to stay with their employ­er. Regard­less of any leg­isla­tive reform, it’s clear that hybrid work­ing is no longer con­sid­ered a mere perk by job­seek­ers, so employ­ers that fail to accom­mo­date their pref­er­ences will strug­gle to recruit and retain the tal­ent they need.