What's new?
Employees have had the right to make a request for flexible working in some form since 2003 and this right has gradually been extended over the years and since 6 April 2024 the right to request has become a "day one" right.
In an article published in The Telegraph it has been reported that a system of "compressed hours", which lets an employee work their contracted week's hours in four days rather than five, will be included in the new package. The Labour source quoted in the article also refers to term-time only working. However, under the current regime employees can request compressed hours, employees can also request term-time only working – so what is new? The honest answer is that we don't know yet. The article in the Telegraph suggests the balance of power will shift and that employers will be legally obliged to offer flexible working from day one except where it is "not reasonably feasible".
Labour's Plan to Make Work Pay referenced bolstering flexible working rights, including term-time only working and making flexible working the default from day one, except where it is not reasonably feasible. It is no surprise that this area of law is now being reviewed.
Comment
The flexible working regime has frequently been criticised for lacking teeth. An employment tribunal is not able to question the commercial rationale or business reasons behind an employer's refusal of a flexible working request. The compensation that a tribunal can award is also limited to eight weeks' pay (capped at a week's pay statutory cap of £700 – maximum award is therefore £5,600). We will obviously have to wait and see what exactly the proposal entails but it may well be that tribunals are given greater powers to scrutinise any refusal and the compensation available may increase.
With the new workers' rights package promised within the first 100 days of taking office we can expect to see further detail by the middle of October. A key point to note is that we can expect government consultation on the issue – with the impact on productivity central to the debate. It is also important to note that this kind of flexibility will not be suitable in all sectors – consider the education sector.
Please see our recent Legal Update on the Right to Switch Off for further information on reform in this area.
