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by uma

DESPITE having been on the agenda for the last two years, the Employment Bill 2022 appears to have been side-lined once again after it wasn’t included in the Queen’s speech on 10 May.

The bill would introduce the ability for workers to negotiate flexible working from home arrangements with their employer from day one of their contract, as well as the ability to disconnect and work from abroad.

Laura Kearsley, partner and solicitor specialising in employment law at Nelsons, said: “The pandemic was a watershed moment for the working environment, as millions were forced to adapt to working from the comfort of their own home. Since then, it has become the ‘new normal’, and many workers are understandably reluctant to go back to pre-pandemic attitudes towards office working.”

What will the new legislation mean for hybrid working?

“The Employment Bill focuses on working arrangements of employees, including flexible working. Hybrid working is a type of flexible working whereby employees split their time between working in the office and working from home or other locations. Many people have started hybrid working since the first lockdown and now prefer it.

“A point of contention reflected in the bill has been whether employees should have the right to request flexible working from the beginning of their employment. The bill, as drafted, requires employers to include the ability to request flexible working in an employee’s employment contract as a right.

“Discussions are also taking place with regards to whether employees should be allowed to request to work flexibly abroad, as well as the right to disconnect, which has come about as a result of hidden overtime due to the pandemic.

“Based on the current draft, employees will be able to request flexible working, including hybrid working, from the first day of their employment, regardless of the type of job. This will be achieved by removing the requirement for 26 weeks’ service before a request for home working or any other kind of flexible working can be made.”

What will employers need to accommodate?

“From an employer perspective, requests must be dealt with in a ‘reasonable manner’. This includes:

  • Assessing the advantages and disadvantages of the application;
  • Holding a meeting to discuss the request with the employee; and,
  • Offering an appeal process.

“If an employer does not handle a request in a reasonable manner, the employee can involve ACAS and ultimately litigate in the employment tribunal.”

Does this bill mean that employees now hold all the power?

“The government has said that, although it is the ambition to make flexible working the default position, it is not practical to remove the employer’s ability to turn down a request. Therefore, although the employee may have the right to request flexible working from day one of their employment, their ability to force the employer to genuinely consider their request will be as limited as it is currently.”

Where will employers be able to put their foot down?

“Employers must deal with flexible working requests in a reasonable and timely manner. However, an employer can refuse a request for flexible working on any of the following grounds:

  • The burden of additional costs;
  • There would be a detrimental effect on the employer’s ability to meet customer demand;
  • The employer is unable to reorganise work among existing staff;
  • The employer is unable to recruit additional staff;
  • It would have a detrimental impact on quality;
  • It would have a detrimental impact on performance;
  • There is insufficient work during the periods that the employee proposes to work; or,
  • There are planned structural changes.

“Currently, it is up to the employer to propose alternatives or compromises and they are not required by law to do so. However, such a requirement has been discussed, as well as extensions of the right to include requesting temporary arrangements and a review of the administrative process that deals with the right to request hybrid working.”

For more advice on managing and supporting your workforce, please visit: www.nelsonslaw.co.uk/managing-your-workforce/

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