How will flexible working change under Labour?

Flexible working is not just popular, it can make work accessible to a wider range of people. It helps people with families to balance the demands of work and caring, and people with disabilities to balance their health and work. 

 

The Labour government committed to tackling “one-sided flexibility,” which benefits employers but not employees. But rather than the drastic reform promised elsewhere, the Make Work Pay plans talk of adapting and building on current law around flexible working. Now that the Employment Rights Act has been passed, it seems that the plans may have been scaled back somewhat. 

 

So what changes will we see in flexible working? 

 

 

The government pledged to “make flexible working the default from day one, except where it is not reasonably feasible.” 

 

Since 2024, employees have had a day 1 right to request flexible working relating to the number of hours, time of work and workplace. Employees may make two requests in any 12-month period. Employers can only refuse these requests for specified reasons, must consult with the employee before refusing or modifying the request, and respond within two months. The law also requires employers to deal with applications in a 'reasonable manner'. 

 

The Employment Rights Act adds a legal requirement that, as well as having a specified reason to refuse requests, the employer must give their reasons for refusal and explain why they believe it is reasonable. This will take effect some time in 2027. 

 

The new requirements may give employers more focus on process when considering requests but don't make a huge difference to employees’ rights. It does not seem to go so far as making flexible working ‘the default’. 

 

 

The government had promised employees the ‘right to switch off’. There was little detail about how this would work - it could prevent employers from contacting employees unless it is an emergency, or ensure employees aren’t penalised for ignoring communications. 

 

The government had promised the right to switch off via a Code of Practice. This would have meant employees could not bring standalone claims for being contacted out of hours, but that it would be an aggravating factor to other claims, resulting in an uplift to compensation. 

 

However, the Employment Rights Act does not include any mention of a right to switch off or disconnect, and reports suggest the government has dropped the right. 

 

 

The Workers (Predictable Terms and Conditions) Act 2023 was due to take effect in autumn 2024. It would have given workers the right to request predictability about the number of hours worked, the days and times they worked and the period they were contracted for. Requests could only be refused for specific reasons. The Labour government repealed this act so that they could introduce their own reforms in the Employment Rights Act, making it simpler for employers to understand their duties. 

 

However, the Employment Rights Act is not an exact replacement. It requires employers to offer “guaranteed hours” but does not mention working patterns. The new right is also limited to those on zero hours and minimum hours contracts. Following feedback, the government also softened the right to acknowledge that some workers enjoy the flexibility of zero-hours contracts and may not want fixed hours. 

 

This right will only have a large impact on employers who rely heavily on zero-hours workers. It will improve rights for these workers, while still allowing flexibility for those who want it. 

 

 

For most employers, the Employment Rights Act will not have a huge effect on flexibility. It might be a good time to refresh policies and training, and remind managers of the important of handling requests for flexible working reasonably. 

 

Employers who rely on zero-hours contracts are likely to be affected. This is one of the more complicated parts of the bill, so it is sensible to seek legal advice specific to your situation.