How a forthcoming UK law might boost hybrid working

Some firms are steadfastly resisting employees’ demands for flexibility. Proposed legislation may oblige them to reconsider, but market forces could compel them to do so even before that’s enacted

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.”

An employer that’s going to put its foot down about flexible working is more likely to shoot itself in that proverbial foot

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, 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.