The law on flexible working looks set to change if the Employment Relations (Flexible Working) Bill passes its third reading in the House of Commons and gains Royal Assent.
This is a private member’s bill introduced on 15 June 2022 by Labour MP Yasmin Qureshi, which will make provision in relation to the right of employees to request variations to particular terms and conditions of employment, including working hours, times and locations.
The current position is that any employee who has worked for their employer for at least 26 weeks can make a request for flexible working which includes a change to working hours, times or location. One formal request is permitted per year and the employee must comply with a range of formalities which include the need to explain the effect the change will have on the business and how those effects might be overcome.
Although Acas guidance recommends it, there is no obligation to meet with the employee and the only obligations on the employer are to consider the request in a ‘reasonable manner’, respond within three months, and a refusal can only be for one or more of the following ‘permitted reasons’:
Contrary to popular belief there is no requirement for an employee to be a parent or carer to make the request, although there is enhanced protection and rights for time off for parents and carers under other legislation, including the Equality Act 2010.
If passed, new legislation would extend the right to request flexible working in the following ways:
The proposals have caused some concern among employers who are already experiencing difficulty in encouraging staff back into the workplace post-Covid. However, most employers already have a flexible working policy, discuss requests with employees, consider alternative options and don’t wait three months to respond. As long as the policy is updated to take into account the new rules, the main change is likely to be the increase in the number of requests received by an employer, because of the right to apply from day one and the ability to make two requests each year, bolstered by the increased publicity surrounding the bill.
Despite the emphasis in this bill that flexible working should be the default position, there will continue to be no right to demand flexible working. Every organisation is unique and so each employer has the ability to consider the impact of a request on their business. An employer who approaches requests in a reasonable and consistent manner and only declines for prescribed reasons should not see a detrimental impact on their organisation.
On 15 June 2022, the bill had its first reading in the House of Commons and passed its House of Commons second reading. On 28 October 2022, the bill completed its Committee stage on 7 December 2022 without amendment. In both cases, MPs from all sides of the House spoke in favour of the bill and no opposition was raised.
On 13 June 2023, no amendments were raised in the House of Lords, and the bill was, therefore, moved to order of commitment discharged, meaning that its third reading will take place on 14 July 2023.
As it is a private member’s bill, it must be passed before the end of the present parliamentary session, which is likely to be in autumn 2023. Only Government Bills can receive ‘carry-on’ motions which enable them to transfer into the next session.
However, given that the bill has cross-party support – it was introduced by two Labour parliamentarians, Yasmin Qureshi MP and Baroness Taylor of Bolton, and has Government support – it is highly likely to pass its third reading next week. This will mean that it is likely to receive Royal Assent before the Lords’ summer recess on 27 July.
For more information please contact: Vanessa Latham
Employment and Discrimination
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