2023 Employment Relations (Flexible Working) Act

[ladymuck]

So....

What do we think will happen when this comes into force on 6 April? Technically, inside roles are employed so you'd have the right to ask for compressed hours, late starts/early finishes and whatever else.

https://helptogrow.campaign.gov.uk/flexible-working

[b0redom]

Who're you going to ask? Your umbrella is your employer. They'll presumably ask the client who will likely say.... "Um....no."

[hobnob]

It's an interesting question. Looking at the list of valid reasons for an employer to say no, I think the most relevant items are the ones I've put in bold:

• extra costs that will damage the business
• the work cannot be reorganised among other staff
• people cannot be recruited to do the work
• flexible working will affect quality and performance
• the business will not be able to meet customer demand
• there’s a lack of work to do during the proposed working times
• the business is planning changes to the workforce

E.g. in my case, I'm inside IR35, but as far as I know I'm the only person from my umbrella working at this particular client. So, the umbrella can't redistribute my tasks to their other employees (contractors). Likewise, the umbrella's customer would presumably be the recruitment agency, and the agency can demand that I toe the line.

Having said all that, there could be an indirect benefit for contractors. I.e. if the client gets used to allowing flexible working for their direct employees, they might be more open to the idea of contractors doing the same thing (e.g. compressed hours). The obvious analogy is COVID-19, i.e. most companies were forced to allow remote working when they might not otherwise have bothered.

[ladymuck]

It's going to make billing interesting if on a day rate and you're working your 40 hours in four days.

[sreed]

I’m currently at a mid sized FS firm and one of my fellow umbrella contractors got the client to sign-off on him working from overseas over summer using their internal temp overseas working policy which allows employees up to 6 weeks/year with prior permission and infosec signoff.

So perhaps in a minority of cases internal HR policies could help contractors push for more flexibility.

Mind you in this case he’s a key cog in one of their long running flagship projects so the project’s overdependency on him probably helped push this through.

[Ketto]

As ever with these things, i think you’ll mostly get whatever you want if the client rates you, with the opposite being the case if they don’t.

[northernladuk]

Simply won't work. It's trying to push a round peg in a square hole. To the client we are still a contractor who delivers as the client wants. You can ask the umbrella but they are at the mercy of the contract. I'd imagine it would be a similar headache for big consultancies who's employees ask for the same but the clients requirements won't match the request. It's a clear case of not meeting customer demand. Game over.

This is gonna be an utter nightmare for HR in big orgs with thousands of different requests and small businesses that just aren't big enough to cover. There is gonna be falling out and tribunals left right and center. Employees now have the option to ask twice, won't agree with the the companys reasons when they say no, get a cob on and either hate the company or take it further where normally they'd be quite happy carrying on as they are.

The last reason is interesting - 'the business is planning changes to the workforce'. Many companies are constantly in re-org so going to be a very grey area. I remember being at a large pharma that had most of the IT workforce on, can't remember the name, like working at risk because redundancies were being considered, for nearly 5 years running.

[sreed]

So....

What do we think will happen when this comes into force on 6 April? Technically, inside roles are employed so you'd have the right to ask for compressed hours, late starts/early finishes and whatever else.

https://helptogrow.campaign.gov.uk/flexible-working

Having looked this up, it looks like this Act isn't a radical change from existing legislation, it's an iterative change on what already exists - the right to request flexible working first came in in 2003, then was extended to all employees after 26 weeks’ continuous service in 2014.

The main aspects that are different are -
- day 1 right (down from minimum 26 weeks service)
- 2 months to deal with the request (down from 3 months)
- employee no longer needs to make a business case for impact on business (employer needs to make those considerations)
- requires employer to consult with the employee about the request and its impact
- 2 requests in a 12 month period (previously 1)

The aspects that are unchanged are -
- no change in the reasons for rejection, they continue to be the same
- no statutory right to appeal (though it recommends that employers have an appeals process: again, this is unchanged from present
- no change to the right to go to tribunal, this continues as is

Given the above, I don't see this having any material impact on current HR and working practices, it's just small changes to existing policies and processes that employers already needed to have in place.

[ladymuck]

Not having paid much attention to employment law for the better part of the last 18/19 years, I didn't realise it was a rehash / update of existing legislation.

However, back when it was first drawn up, we didn't have the situation we are in now regarding off payroll working.

To me, any client stipulating a role is inside but refusing to put the worker on their own payroll is essentially a client wanting to avoid the responsibility of having an employee. I feel this is yet another right that these "no rights" employees are losing out on purely because someone who did a half day PowerPoint based course decides the worker is an employee for tax purposes.

[NotAllThere]

As ever with these things, i think you’ll mostly get whatever you want if the client rates you, with the opposite being the case if they don’t.

Exactly this. The new law doesn't really make much difference - unless you need to claim constructive dismissal.