New law on flexi working not as groundbreaking as it seems, experts warn

Campaigners have hailed the passing of the Flexible Working Bill as a "big step forward" for working people across the country.

The legislation formally passed into law yesterday and aims to give employees much more freedom over how, when and where they work, putting the onus on managers to explain why a flexible arrangement wouldn't work.

Labour MP Yasmin Qureshi, who introduced the Bill, hailed it as "a big step forward in improving the working lives for millions of UK employees".

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Flexible working campaigner Anna Whitehouse thanked funders of her Flex Appeal campaign for showing that "working in a humane, human way" is "not just possible but essential to close the gender pay gap".

However, several employment lawyers have told Yahoo News that the Bill might not be quite as significant a change as it appears on the surface.

Where does the Flexible Working Bill fall short?

One victory being hailed by many people today is that the Bill gives employees the right to request a flexible working arrangement from day one of their job.

However, this was an amendment proposed by Labour MP Tulip Siddiq which did not make it into the final piece of legislation.

Instead, people will have to work the current minimum of 26 weeks before they can put in their first application.

It is understood the government plans to bring in a day one right through a separate law, but no draft legislation appears to have been drawn up yet.

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“I think it’s still likely to happen, but as far as timing goes, that’s anyone’s guess," Liz Stevens of Birketts LLP told Yahoo News.

"It really means that the changes that are being brought in under the act are not that groundbreaking. I think it would make a bigger difference generally if you could put in an application right from the start, particularly if you are a woman with childcare responsibilities.

"If an employer is saying from the outset, this has to be a full-time job and there’s no scope for any flexibility in that, then of course that would put a lot of women off, because even in this day and age a lot of these childcare responsibilities are still put on women."

The professional support lawyer added: "There is more of a onus on the employer to consider requests more carefully, but I wouldn’t say it’s a wholesale change or a massive reform."

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The bill allows employees to make two flexible working requests within a 12-month period - up from one under previous legislation.

Employees will now no longer have to explain the impact their flexible working will have on their role and how their employer could deal with it - putting the responsibility on managers to figure it out.

It requires employers to give a decision within two months of receiving the requests - down from three months previously, but ultimately they can still turn the request down.

Katie Hodson, Partner and Head of Employment at SAS Daniels, told Yahoo News: "I don’t believe that the Bill is going to make too much of a difference to people’s everyday lives as there are only slight changes being made to the existing legislation.

"Employers are already required to deal with flexible working requests through a statutory process and are only entitled to refuse any such request using one or more of the 8 statutory business grounds. That is not going to change."

Hina Belitz, Partner and employment law specialist at Excello Law told Yahoo News: "It is absolutely crucial to bear in mind that this is still only a right to request – not a right to receive flexible working.

"In that sense, in order to assess its efficacy and whether it will truly make a difference to the day-to-day lives of employees struggling with flexibility issues, we need further information and consideration on whether this will actually lead more people to get the flexibility they need.

"Will we just see employers get better at finding clever and ostensibly fair ways to refuse these things? Will we see an increase in discrimination or similar claims linked to supposedly unfair refusals of flexible working requests?

"Potentially, which may prove a strain on our already full to bursting employment tribunal system."

As employment law expert Elizabeth Aylott points out, disabled people or women who make a request as a reasonable adjustment could pursue legal action via the Equality Act 2010 instead.

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Under the new Bill, managers will have to hold a consultation with the employer before rejecting a request. Some have interpreted this to mean an eye-to-eye meeting,

However, looking at the legislation, employment law barrister Jason Braier doesn't think so.

"I've seen suggestion that the Bill means an employer cannot now refuse an application without telling you to the "whites of your eyes". It doesn't," he tweeted.

"It provides for no particular quality of consultation. I can't see why it can't be done via perfunctory email engagement."

Yahoo News has contacted the Department for Business, Energy & Industrial Strategy for comment.