UK Employment Insights: Flexible Work is “Proper Work”

Génevie Kuiper-Isaacson, Senior Associate

Génevie Kuiper-Isaacson is a tri-qualified lawyer specialising in employment law. She started her career in South Africa, where she ran her own firm, before moving to a prominent commercial firm in London. She has extensive experience advising both employees and employers in relation to a wide range of matters, including unfair dismissal, sex discrimination, pregnancy/ maternity discrimination, disability discrimination, race discrimination, TUPE, whistleblowing, grievance and disciplinary process, settlement negotiations, redundancies, enforcement and defence of restrictive covenants and corporate advisory and training.

The recently aired BBC Panorama documentary Should We Still Be Working from Home? has reignited discussions over flexible working. While the show itself offered a balanced view of the matter, a segment featuring former Marks and Spencer chief executive Lord Rose ended up making headlines. Among other things, Rose argued that the shift to remote work was “damaging productivity” while creating a generation of people who are not used to doing “proper work”.

Even so, Lord Rose is hardly alone in these views. Over the past 24 months, several of the largest employers globally have said much the same thing while others have pointed to the additional benefits a common working environment offers to both employers and employees. For example, Nationwide chief executive Debbie Crosbie recently pointed out that a “physical presence” in the workplace is important for career growth, and while flexible working can be useful for some staff, employers need to be careful that they don’t “inadvertently prevent women from taking some of the opportunities by not being in the office”. Of course, flexible working can come in many guises, including part-time work, the right to work only during school terms, compressed hours, early/ late start times, and job shares, to name but a few.

As with all debates there is always a flipside. Multiple studies into flexible working, including the four-day week project, have shown that non-traditional working arrangements do not result in any adverse impacts to employers, while employees tend to be happier, less stressed and more productive. Although not every organisation can adopt this model of work, allowing employees to work from home for at least part of the working week has been shown to produce benefits to both employers and employees, including:

• Boosting mental and physical wellness, whether by allowing employees to avoid the commute or giving them greater flexibility in accessing wellness activities. Studies consistently show that working when and where it is most convenient helps reduce stress and boost productivity.
• Sustainability benefits: in addition to relieving pressure on transport networks, flexible working may also represent a significant cost saving for employers through a reduced need for office space.
• Freeing up consumer spending by reducing the costs workers face travelling to work every day.
• Improved job satisfaction: allowing staff team to work in a way that allows them to feel at their most productive and creative and is a powerful motivator.
• Enhanced work-life balance: for parents and carers, flexible work can be a lifeline, allowing them to work around school pickup or caring responsibilities while still making a productive and meaningful contribution to their companies. For employees with disabilities, this flexibility can sometimes be the difference between work and unemployment.
• Expanding the talent pool: for employers, the best talent is no longer only within commuter distance of the office; for employees, the best job is no longer the one that can be reached within 90 minutes of their front door.

Historically, employees have been able to request flexible working informally. However, the introduction of an Act with clear guidelines marks an important development to the UK’s working culture.

The framework of rules governing the flexible working process (formal requests) are set out in sections 80F to 80I of the Employment Rights Act 1996 and in the Flexible Working Regulations 2014 (as amended by the Employment Relations (Flexible Working) Act 2023 and the Flexible Working (Amendment) Regulations 2023).

The Employment Relations (Flexible Working) Act which came into force on 6th April 2024, allows employees to request flexible working from day one. Other changes include:

• An employee will be entitled to make two statutory flexible working requests per year. Prior to this, employees were restricted to only one request per year.
• Employers must now give a decision within two-months from the date a request is submitted. This period can be extended by agreement. If an employer does not accept a request, it must consult with the employee before issuing any formal notification concerning the outcome. Employees will be allowed to appeal the decision.
• Employees will no longer need to explain how the proposed arrangement will work when submitting an application for flexible working, though doing so may help their employer come to a fair decision.
• Employers will be expected to deal with any request in a reasonable manner.

Other legislation that offers protection to employees and workers includes:

• The Employment Rights Act 1996 provides protection to employees who have made or propose to make a statutory flexible working request.
• The Equality Act 2010 provides strong protections for parents and carers of both sexes who need to work flexibly to care for their children. Potential claims for refusing a flexible working request from a parent or carer may include indirect sex discrimination.

The right to flexible working arrangements is set to be further strengthened by The Employment Rights Bill. The Government has said that it aims to make “flexible working the default where practical” and to “make workplaces more compatible with peoples lives”.