Employment Law Coffee Break | New consultation on flexible working, employment status in the tax tribunal and a spotlight on immigration for HR

Consultation on flexible working published

The government has today published its consultation on flexible working. The commitment to reform flexible working was first set out in the Good Work Plan back in 2019 and, with changing working practices during the Covid-19 pandemic, there has been increasing speculation that this would be an area of reform that the government would now push ahead with. The consultation states that the pandemic has "opened our eyes to what may be possible and we now have the chance to seize the moment and make flexible working – in all its forms – part of the business DNA".

Potential reforms

The consultation seeks views on both the existing position and potential changes:

• Making the right to request flexible working a day one right: Views are sought on whether the current 26 week qualifying period should be removed and, if so, the benefits this might deliver. The government does state though that it "does not feel that now is the right time to introduce a statutory requirement for employers to say in job adverts whether flexible working is available".
• Whether the existing eight statutory business reasons for refusing a request remain valid: Given the shift in the way people are working since 2014, the consultation is keen to identify whether these business reasons essentially remain fit for purpose.
• Introducing a requirement for an employer to suggest alternatives where a request to work flexibly cannot be accommodated: The government is keen to "encourage a culture where employers give full consideration to requests for flexible working and what might be possible – rather than simply rejecting the immediate proposal which has been put forward". An example given is where an employer cannot make a change on all working days - could they look at making the change on some working days only? In practice, while some employers do consider alternatives when handling flexible working requests, the government is looking to influence, via legislation, existing organisational norms where opportunities for flexible working are not fully considered.
• The current process underpinning the right to request flexible working: The government is considering whether allowing employees to make more than one statutory request per year would make the legislative framework more responsive to changes in an individual's circumstances. Examples given include changes requested by new parents and newly disabled people.
• A statutory right to request a temporary arrangement: While the current legislative framework does allow for temporary arrangements to be agreed between an employee and employer, this ability to request a contractual change for a defined, time-limited period is under-utilised. Examples where a temporary arrangement might be appropriate include a parent requesting a change in a working pattern to support their child's transition from early years' care into school or an employee requesting part-time working for a month to support an elderly parent moving into a care home.

Flexible Working Taskforce

In addition to legislative reform, the government is also looking to its Flexible Working Taskforce – a partnership across business groups, trade unions, charities and government departments – to bring together expertise to support businesses in this area. Most immediately the taskforce has been asked to help take forward the best learnings from the pandemic and to develop advice to support expected new ways of working as businesses continue to adapt; this would cover essential practical and legal issues, including health and safety, remote working, equalities and fairness, and performance management.

The consultation rejects the introduction of a "one-size-fits-all" approach to requiring large employers to publish a flexible working statement or policy (enforced by a legislative requirement), although the government intends to continue to support this practice on a voluntary basis.

Ad hoc flexibility

The government also recognises a wider need for flexibility outside a more permanent flexible working arrangement. The government has committed to launch a call for evidence looking "at the sorts of 'extra' flexibility people may need to help them live their lives in the best way they can – both at work and at home" on an "ad hoc and informal" basis, for example to attend a one-off or regular appointment.

Building on the package of flexibility, the government has also published its response on a new specific statutory right for carers. This will be a day one right, providing five working days of unpaid leave per year for employees managing long-term caring responsibilities. It will be introduced when Parliamentary time allows.

What does this mean for employers?

With many employers introducing new hybrid working policies, there may perhaps be less need for employees to request flexible working arrangements under their statutory rights where the policy provides sufficient flexibility. However, with the media interest around the proposed legislative reforms and new hybrid working practices, and diversity and inclusion high on agendas, the importance of ensuring that managers properly consider all flexible working requests and respond appropriately will be paramount. Underpinning the consultation is a message that cultural change is now required: "our understanding of what it means to work flexibly – and therefore what it means to make flexible working the default – extends beyond requesting contractual changes to employment terms and conditions. It is also about getting the culture right".

It must also be remembered that even where a request is validly rejected under the statutory flexible working procedure (either now or in line with any statutory reforms to be introduced), it may still be indirectly discriminatory to refuse a flexible working pattern, for example, where a woman has requested specific arrangements to support her childcare. Please see our earlier Coffee Break where an Employment Tribunal found the denial of a request to meet such commitments as an "injustice because of her sex".

The consultation response appears to limit any reforms to "employees"; the proposed reforms look at building on and improving the existing statutory flexible working regime which agency workers fall outside of (save where they are returning from a period of statutory parental leave). However, with the pandemic affecting the way people work more widely, many agency workers may well seek similar flexibility in their assignments. Agency workers who are unable to avail themselves of the statutory right to request flexible working may instead look to the Equality Act 2010 if they can demonstrate that they belong to a group sharing a protected characteristic, such as sex or age and they are unjustifiably disadvantaged by the required working practices.

The consultation closes on 1 December 2021.

Employment status in the tax tribunal

We now have the long-awaited Court of Appeal decision about the employment and tax status of football referees. The court says that a single assignment under an overarching contract can be a contract of employment (and effectively within the IR35 "deemed employment" tax regime for contract workers working via their own personal service companies). This is the case even if there is no obligation to accept those assignments. With implications extending well beyond the world of football, please see the latest Insight from our Contingent Workforce team here.

Partner Kevin Barrow also explores the case and its implications for CityAM.

Immigration spotlight: right to work checks, compliance audits and Brexit

Below are three topics our immigration team have this month flagged for immediate attention:

Adjusted right to work checks: Last week we reported on the extension to the adjusted right to work checks until 5 April 2022. Please see our guide on what employers should be doing and important dates to be aware of.

Brexit: Many immigration issues arising from Brexit remain unresolved. The government's attempts to publicise the deadline of the 30 June 2021 for individuals in the UK to apply under the EU Settlement Scheme appears to have failed to reach many. While contingencies have been put in place, flaws remain including when late applications under the EU Settlement Scheme may be considered and the issues faced by those looking to come to the UK. We explore these issues further here.

Compliance audits: The Home Office has confirmed that compliance audits have resumed. The Home Office would also appear, in the meantime, to have increased data sharing - especially with other government agencies - which will place compliance at the forefront of many sponsors' minds. We have developed an interactive compliance guide to help UK sponsors – please read more here.