It has been reported that Labour and its Deputy Prime Minister, Angela Rayner, are considering strengthening the right for employees to request a four day working week.
We have no detail about how this will work in practice, but a consistent theme seems to be that it will not be compulsory for employers to accept such requests, and the government has said it has “no plans” to force employers to accept requests.
Labour’s proposal implies that employers would need to offer flexible working from day one “except where it is not reasonably feasible”. If that is correct, then it may mean a slightshift away from the current flexible working regime which was updated in April 2024 to allow employees to make a flexible working request from day one of their employment.
Employees are currently also allowed to make two such requests in any year and their requests need to be answered and resolved within two months. Under the present regime, an employer can genuinely refuse an application for one of only eight reasons:: 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; flexible working will affect 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.
It could be argued that if an employer does not genuinely have a right to refuse under one of these eight reasons, it could give rise to claims for various types of discrimination, or constructive unfair dismissal claims. This issue often arises when an employee returns to work from maternity leave, or where working fewer days or hours could be a reasonable adjustment for someone with a disability.
The real question will be what Labour’s proposal actually means in practice for employers. Based on what we know so far,I am not convinced there is much of a difference to the present laws in place. Currently, if an employer reasonably refuses a request for one of the eight reasons, it seems arguable that they are meeting the definition that it is not “reasonably feasible” to accommodate the request. If this is the case, then Labour’s plans will bring very little change for most employers.
Even if it does become more difficult to refuse flexible working requests, what is the real impact of that on businesses? There is a lot of scaremongering, particularly with commentary from Labour’s opposition suggesting that businesses are “petrified” by the plans. The evidence points to the contrary, with many employers already providing flexible family friendly working arrangements for employees. Those that do, often report increases in morale and retention and minimal to no disruption to their businesses.
The proposals form part of the government’s plans to “Make Work Pay” with the intention of increasing productivity and supporting sustained economic growth across the country. In 2022, 61 UK organisations agreed to participate in the world’s largest four-day working week trial to date. If the results of the trial are anything to go by, greater flexibility may actually be for the best with the results being overwhelmingly positive for both employer and employee.
France will be kicking off its four-day working week pilot this month with a slightly different focus by offering the scheme specifically to divorced parents who share custody of their child on specific weeks. Applying only to a select group of civil servants for now, parents that meet the criteria can work four days instead of five.
There have also been numerous other trials held in different countries such as; Iceland, Germany, Japan, Portugal, Lithuania, South Africa and Belgium. Interestingly the Belgian approach allows for a six month trial for the request and the employers have the option to switch back to a five day week if it is clear that the trial isn’t working. While six months may be too long and too much of an impact for many businesses to bear if things do not work, the government should look at a fallback position where an employer can objectively justify returning to previous arrangements if things are clearly not working.
How the UK’s right to request a four-day working week will look will likely become clearer with time. With Labour promising to introduce the Employment Rights Bill within the first 100 days of coming to power, that could be as soon as 12th October. It is worth remembering that while it may be introduced within that period, it will take longer to make it through Parliament, so we are unlikely to see any change before 2025.
Barry Ross is Managing Director of Crossland Employment Solicitors
