Flexible working: New government consultation planned

The COVID-19 pandemic has changed the face of working life as we know it, from compulsory PPE in the workplace, socially distanced seating arrangements or the requirement to work from home some or all of the time.

As restrictions ease, though, it seems that the flexible approach to working life could be here to stay. The government has announced a review later this year on the expansion of employees’ right to work flexibly and remotely.

Currently, employee requests to work ‘flexibly’ (i.e to make changes to their working patterns) are made formally. Employers are obliged to make a decision within three months, dealing with requests in a ‘reasonable manner’. However, the government consultation will look into strengthening employees’ rights in relation to flexible working, with a government spokesperson claiming that the consultation will consider ‘making flexible working the default unless employers have good reasons not to’.

This move will no doubt attract a mixed response. While it is arguable that flexible working (and remote working) can allow employees to better balance work and life commitments, there is concern that the boundaries between home and work life are blurred by remote working, negatively impacting wellbeing. Employers will have to weigh up the potential increases in productivity (a recent CIPD survey found that 71% of employers say that the increase in homeworking has either boosted or made no difference to productivity) with the possible negative impact on areas such as networking and training opportunities.

There are other, wider consequences to consider too. While flexible working is largely recognised as providing a better work-life balance, improper implementation can lead to employees being unfairly prejudiced. In a recent tribunal case, attention was again drawn to the fact that women are less likely than men to be able to accommodate flexible working patterns because of childcare responsibility.

Women often bear the greater burden of childcare than men, which limits their ability to work certain hours; often referred to as the ‘childcare disparity’. If a flexible working policy puts an employee at a particular disadvantage due to the childcare disparity, this could give rise to a discrimination claim. Care must be taken to ensure to ensure that any flexible working policy considers societal norms and pressures that may impact an employee’s ability to work flexibly.

Additionally, there is a risk that flexible working rights will only benefit professionals with office-based jobs. To benefit those that are unable to work from home, any changes to flexible working provisions will need to be extended to flexi-time, job share opportunities and part-time working.

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Hayley is a solicitor in our Legal 500-rated employment law team. She helps clients with a wide range of matters, from tribunal proceedings to operational advice on employee relations issues.