Carolyn Brown

Written by: Carolyn Brown

Carolyn Brown

Partner, Head of Client Legal Services

Workforce rights are changing, but regulation still looks a long way off

“Making flexible working the default” is a consultation title, not a settled policy. While it replicates the December 2019 Queen’s Speech terminology, it is far from the suggested new “right” to work from home floated over the past year. As the consultation continues until December, it will garner opinions from employers and their workforces on whether combining home with work-based settings, which they are now trialling in real time, works for them.  

How many employers will establish settled policies pending the outcome of this consultation remains to be seen. It proposes extending the existing right to request flexible working to all employees, but with a shorter response period for employers than the current three months. However, the Government favours retaining all the existing eight reasons for refusal of requests. 

It’s a clear example of the nudge theory of regulation at work. One new proposal is that an employer who refuses the request needs to offer an alternative instead, and there is also a reminder that short-term flexible working arrangements can work well. If all employers who refuse must come up with a genuine and viable alternative, the Government may anticipate more requests will be agreed.

This consultation was paired with the policy announcement of a week’s unpaid carers leave per year to support the long-term care of a dependant, again as a day one right. This will require the same notice as for statutory holiday. It is presumably planned as complementary to emergency dependent care leave, also unpaid, and to support those who cannot secure a short period of unpaid leave from their employer when they need it. 

Apparently unconnected, the Government also released its response to its consultation on tips and gratuities, announcing plans for them all to be cascaded to the workforce without any employer deductions. This is the result of a consultation which closed over five years ago. Those who consider this to be a low-cost way of increasing pay to attract more talent now to a currently under-resourced sector should see this as a very slow burn indeed. Government has stated this policy will be included in the Employment Bill, along with the above changes to flexible working requests and carers’ leave, but with a key difference. The changes on cascading of all tips to the workforce are not planned to take place until a full year after the Employment Bill (not yet published) has come into force.

Employers who want to get ahead of the competition have plenty of time to make these changes themselves before the new regulation arrives.

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