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 has 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. 

 

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 the Employment Rights Act 1996, employees with at least 26 weeks continuous employment have had the right to request flexible working relating to the number of hours, time of work and workplace. Employers could only refuse these requests for specified reasons. From 6 April 2024 this was made into a day one right by the Employment Relations (Flexible Working) Act Bill 2023, which also allows employees to make two requests in any 12-month period. 

 

Under the current law, employers must consult with the employee before making a decision if it is minded to refuse or modify the request, and respond within two months. The law also requires employers to deal with applications in a 'reasonable manner'.  

 

The Employment Rights Bill will add a requirement that, as well as having a specified reason to refuse requests, it must be reasonable for the employer to refuse the application on that ground. There may be some technical differences, but it’s hard to imagine many employers currently handle a request reasonably, yet still come to a conclusion that relies on a ground for refusal unreasonably. 

 

 

The right to switch off or disconnect concerns employees’ right not to communicate with work outside of working hours. This could mean employers are prevented from contacting employees unless it is an emergency, or that employees can ignore communications without being penalised. 

 

The government has confirmed that this will be a Code of Practice, so employees will not be able to bring standalone claims for being contacted out of hours. Instead, it will be an aggravating factor, resulting in an uplift to compensation. It is uncertain at this stage which Tribunal claims an alleged breach of the Code of Practice could be attached to. There are also no details whether the Code of Practice will need to tie in with internal workplace policies or agreements, or whether the Code of Practice will apply to all sectors. 

 

As this is not a standalone right, it’s unlikely employers will see an influx of new claims. However, they could find themselves ordered to pay more in compensation when claims are made. Employees disciplined for ignoring contact outside of work hours could already have grounds to claim unfair or constructive dismissal. With publicity around a ‘right’ to switch off, we might see more employees bringing such claims. 

 

Read more about the right to switch off 

 

 

The Workers (Predictable Terms and Conditions) Act 2023 received Royal Assent in September 2023 and was due to take effect in autumn 2024. It gave workers the right to request predictably 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 new government announced that it would be repealing this act. Instead, as part of their own reforms they would introduce a new right to a contract that reflects the number of hours regularly worked. Justifying the decision, they said “We do not want to confuse employers and workers with two different models.” 

 

However, the Employment Rights Bill is not an exact replacement. The bill requires employers to offer “guaranteed hours” but does not mention working patterns. The new right also applies to fewer people, as it is limited to those on zero hours and minimum hours contracts. There’s still time for this to be added as an amendment or through regulations, but the government has not outlined any plans to do so. 

 

 

This is a reminder to employers of how important it is to handle requests reasonably and within the law. There is no need to wait for the Employment Rights Bill to double check processes and provide any necessary training. 

 

As the bill makes its way through parliament, employers should consider updating their policies around flexible working, and how they will implement the right to switch off, including any overlap with disciplinary policies.