In the latest episode of our Employment Law focus podcast, Partner, Jonathan Rennie, and Knowledge Lawyer, Victoria Wenn, discuss the recent reforms to flexible working regulations that took effect on 6th April 2024. Also covered are the legal and practical implications of adopting a four-day working week, something that has been introduced in several other countries, with pilots taking place in the UK already with some success.
In the latest episode of our Employment Law focus podcast, Partner, Jonathan Rennie, and Knowledge Lawyer, Victoria Wenn, discuss the recent reforms to flexible working regulations that took effect on 6th April 2024.
Also covered are the legal and practical implications of adopting a four-day working week, something that has been introduced in several other countries, with pilots taking place in the UK already with some success.
This episode looks at:
Jonathan Rennie
Hello and welcome to the TLT Employment Law podcast. I am Jonathan Rennie, one of the partners in the Employment Team, and today I am joined by my colleague, Victoria Wenn, one of the Knowledge Lawyers in our team.
Today we are going to be looking at the reforms to the flexible working regime that took effect on 6th April 2024. We’ll also be discussing the legal and practical implications of adopting a four-day working week – this is something that has been introduced in several other countries and pilots have been taking place in the UK already with some success.
But before we get started, we wanted to touch on an interesting recent case involving the use of artificial intelligence in the workplace. AI is something that we are increasingly being asked about by our clients and its something we discussed in detail in our last podcast.
Victoria Wenn
Thanks Jonathan. Yes, it’s the case of Manjang v Uber Eats. Now it’s been reported that this case has settled, so we won’t know what the outcome would have been at Tribunal, but it’s the first case I have heard about relating to artificial intelligence in an employment law context.
So in order to access work (and therefore get paid) Uber Eats drivers have to log onto the app and take a real-time photograph of themselves for verification. The photograph is then checked against the one held on file. The Claimant failed one of these checks and was suspended. He claimed that the suspension was not managed properly and also that the technology placed those who are black, non-white or of African descent at a disadvantage because they were less likely to pass the facial recognition test.
Now there is actually some research to this effect - it has been reported that facial recognition technology has its highest error rate of approximately 35% when recognising black women’s faces (whereas it is 99% accurate at recognising white male faces) and the Claimant’s claim was supported by the EHRC and a trade union.
As I say, because this case settled, we won’t know what the outcome of the claim would have been – but the EHRC has commented that more needs to be done to ensure employers are open and transparent about how they use AI and that employers need to make sure its use is not discriminatory.
Jonathan Rennie
Yes, I suspect this issue is something that is going to come up increasingly as technology advances further and the use of AI becomes more prevalent in the workplace.
Victoria Wenn
I think so and it will be interesting to see how the case law develops.
It is also worth mentioning that the government has just issued new guidance on “responsible AI in recruitment” which identifies potential ethical risks of using AI in recruitment processes, and the considerations that an employer should have at each stage of the process. So that might be worth a look for anyone interested in this area.
Jonathan Rennie
Thanks for that Victoria. Now, moving on to our main topic for this episode – flexible working. This has been something of a hot topic for some time, particularly since the pandemic, with more and more people wanting to work flexibly. The pandemic really fast-tracked a lot of the technology that we needed in order to work from home, which means it is easier than ever to work flexibly both in terms of hours and location.
Victoria Wenn
Yes, that’s right. Flexible working seems to be one of the most important benefits for employees at the moment.
I’ve actually got some interesting statistics here: according to the Chartered Institute of Personnel and Development, 2m workers changed jobs last year because of a lack of flexible working options and 4m workers left their profession altogether due to a lack of flexibility within their relevant sector.
Likewise, it has been reported that Generation Z (who will make up 27% of the global workforce in 2025) are 59% more willing to leave a job if the option of hybrid working is taken away, and nearly 75% of those Gen Zers say that employee flexibility is the number one employee benefit they are looking for.
On the flip side, we’ve seen a lot in the press about the larger well-known employers mandating a return to the office for a set number of days per week. In fact, a recent survey by KPMG has found that nearly two-thirds of employers believe workers will return to the office five days a week within the next three years!
So, it is going to be interesting to see how the law on this develops. If the opinion polls are right, it looks like we may have a Labour government in the not-too-distant future, and they have employment reforms as a key priority (including flexible working and maintaining a work-life balance), so the landscape may change further.
Jonathan Rennie
Well, one of the most publicised changes that came into force on 6th April was that the statutory right to request flexible working became a “day one” right. In other words, an employee can request a flexible working pattern from the very start of their employment rather than having to wait until they have 26 weeks’ service.
Victoria Wenn
Yes, although it’s important to note that this doesn’t mean employees are entitled to work flexibly from day one of their employment or that employers need to adopt a more flexible approach going forward – it simply means that employers have the right to request flexible working under the formal statutory procedure from the first day of their employment, so it’s perhaps not as dramatic a change as it might first appear.
Jonathan Rennie
That’s right – although obviously it does mean that the option of asking for flexible working is now open to a much larger group of employees. The statutory procedure has also been amended with effect from 6th April although the changes are not really that drastic. Employees now have the right to make two requests (rather than one) in a 12-month period. There is no longer a requirement for an employee to explain what effect, if any, their request would have on the employer and how that might be dealt with – and an employer must now deal with a flexible working request within 2 months (rather than 3 months). Employers also now have to consult with an employee if they are going to reject a flexible working request.
But otherwise, the previous rules continue to apply, including the ability for employers to reject a request on one of eight statutory grounds including things like (i) cost to the business, (ii) a negative effect on its ability to meet customer demand and (iii) where work can’t be reorganised among other staff.
So it will be interesting to see whether these changes actually have much effect on the success of flexible working requests or whether we see an increase in the number of claims ending up in Tribunal due to the fact that more people are able to make a request.
Victoria Wenn
Yes, it will. We’ve actually recently heard about one of the first cases to consider a flexible working request to work remotely (and it’s worth pointing out that the old statutory procedure applied in that case). It’s the case of Wilson v FCA. In that case, the Respondent implemented a 60/40 remote to office working requirement and in response to this, the Claimant made a flexible working request to work entirely remotely. During the flexible working procedure, she indicated to her employer that a compromise solution (i.e. where she worked some of the time from home and some from the office) was not going to be acceptable to her.
Her request was rejected by her employer, on the basis that it would have had a detrimental impact on her performance and quality of work. In particular, she wouldn’t be able to provide face to face training or coaching to team members or new joiners and she wouldn’t be able to input in managerial strategy meetings.
Interestingly, the Tribunal in this case agreed with the employer and found that it was entitled to reject the flexible working request- and it was highly relevant to that decision that the Claimant was a senior manager who had a number of direct and indirect reports and needed to be around in person.
Of course, this is only an employment tribunal decision so it is not binding on other tribunals. However, it does outline important variables that can be considered by employers in a similar situation.
Jonathan Rennie
Yes, although it is worth mentioning that this case didn’t raise any other legal issues such as indirect discrimination. If a flexible working request is made because of childcare commitments or disability or religious requirements, additional legal considerations may apply that an employer will need to take into account.
Victoria Wenn
Yes, that’s a really important point to make because it’s more common than not for employees to request flexible working for a particular reason which is linked to a protected characteristic. The Judge in the Wilson case also noted that there is of course a debate as to whether face to face or virtual contact is better for a particular role, and that is largely going to depend on the facts of each case and what the employee is doing.
Jonathan Rennie
But for now, I would suggest that employers make sure that their flexible working policies are up to date, ensure that managers are trained to handle flexible working requests fairly and effectively and in line with the new statutory framework, and invest in the necessary technology to support remote or flexible working arrangements, as required.
Victoria Wenn
Agreed, and it’s also worth mentioning that Acas have produced a new updated statutory code of practice and accompanying guidance for dealing with flexible working requests and this applies from 6 April 2024. So that should set out further helpful information for employers.
Jonathan Rennie
So, on the topic of flexible working, you might have seen reports in the press recently about the campaign in support of a 4-day working week. This isn’t the idea of doing “compressed hours” (i.e. working the hours of a five day week over four days) but is about asking employees to do 100% of their usual workload for 100% of their usual salary within the hours of a four day week.
The idea is that they will be more efficient at work if they know they have to get the same amount of work done within a shorter timeframe, whilst also benefitting from a better work-life balance.
Victoria Wenn
Sounds like a great proposition! I definitely think interest in this concept has grown as working practices and technology have developed post pandemic. They ran a trial on this didn’t they with various employers?
Jonathan Rennie
Yes, the first pilot was back in June 2022 and I believe 70 organisations took part over a period of six months. Employees in that pilot received 100% of their pay for 80% of their time in return for committing to 100% productivity during that time, and the pilot was monitored by various academics.
It was reported earlier this year that since that trial, 89% of the businesses taking part have continued with the policy and 51% have made it permanent. The reported benefits were that there was increased efficiency and productivity at work, with people working smarter (for example by reducing meetings and being more organised) and there were also reports of reduced staff turnover and greater work satisfaction and work/life balance.
Victoria Wenn
Yes, I wouldn’t be surprised if more organisations become interested in that way of working in light of that report, particularly with advancements in technology and AI making it easier for employees to work smarter. In fact, a recent report from the official 4 Day Week campaign found that 58% of the public expects the four-day week to be standard by 2030.
Jonathan Rennie
Yes, well I hear that an initiative called “4gust” was launched last month, where organisations can undertake a mini-trial of the four-day week in August, and it is intended that 4ugust will run every year going forward. So it sounds like the campaign may be gaining some momentum and we will have to watch this space!
Victoria Wenn
Well apparently it took 14 years for the 5-day week to become law in the US after it was introduced by Henry Ford, so who knows, 2030 might be slightly ambitious!
Jonathan Rennie
Exactly! There will definitely need to be a cultural shift over a fairly long time in the UK for this to become the norm, although if a few employers start offering it this may become something that differentiates them from other employers and attracts good talent – and then in turn it might become more widespread.
Victoria Wenn
It’s interesting though, because although the pilot you mentioned was clearly a resounding success, the government has been discouraging local authorities in England from adopting a four-day working week due to concerns about taxpayer “value for money”. It has even threatened to legislate on this to prevent local authorities from adopting it. Again, if the Labour party do win at the next general election, it will be interesting to see how they approach the concept, if at all.
Jonathan Rennie
Yes, the commentary on this suggests that for the four day week to become a nationwide practice, it would really need to be introduced at state level by the government – as it has been in France, Portugal, Japan and Korea. It is unlikely that employer practices alone would create a wholesale change across the UK.
Victoria Wenn
So Jonathan, what kind of legal and practical issues do you foresee if an employer were to introduce a four-day week (on a trial or permanent basis?).
Jonathan Rennie
Well, I think that thorough preparation is going to be key here. Firstly, they need to think about how it will work in terms of the requirements of the business, its customers and suppliers. Will they have everyone off on the same day, or will they spread the day off between different departments or in some other way so that the business continues to operate over five days? How are they going to be able to measure productivity and will that even be possible? How are they going to deal with time critical work? Another key consideration, particularly in sectors such as the construction industry, is health and safety and whether the business can operate safely with reduced staff on any particular day.
Victoria Wenn
Yes, that makes sense and what things do you suggest an employer thinks about from an employment law perspective?
Jonathan Rennie
Well firstly they would need to consider the contractual documentation they are going to put in place. Many different clauses in employment contracts relate to working hours and pay, and an employer would therefore need to consult with its employees (or trade unions, if relevant) to change terms and conditions on a trial or permanent basis. Changes would include those to working hours, but also things like holiday allowance would need to be pro-rated as well.
An employer would need employees to agree to the changes before implementing them but given that they would be saying “we will pay you the same but you work one day less per week” I think there is unlikely to be much pushback on this!
Victoria Wenn
Well, quite!
Jonathan Rennie
The other key legal consideration is how the employer is going to deal with employees who already work part-time, particularly those who work a four day week.
Are they going to reduce the part-time workers’ hours and pay (so, for example, they work a three day week for four days’ pay) or are they going to increase their salary to full-time rates (and therefore also increase their workload) in line with the other employees working four days for full-time pay?
It's important to consider this because differences in pay rates for working the same amount of time can lead to equal pay and/or discrimination claims, particularly as the majority of part-time workers are likely to be women.
Victoria Wenn
Yes, interestingly it was reported recently that the Welsh government commissioned a task group to look at exploring a possible four-day week trial in Wales, and the report found that there was a risk that inequalities could be widened as a result, particularly in 24/7 operations.
Jonathan Rennie
Yes, but on the flip side, there is a chance that this way of working could actually improve diversity as it may be more appealing to older workers and/or women with childcare commitments and it could increase staff retention in the workplace too.
Victoria Wenn
That’s right, and that’s what the official 4 Day Week Campaign are claiming too. So it’s clearly not black and white and it’s going to be interesting to see where this one goes!
Victoria Wenn
So, Jonathan, in light of everything we have discussed today, what is your view on the future of flexible working?
Jonathan Rennie
Well, despite the current trend for encouraging people back into the office, I think there is no doubt that a more flexible way of working is here to stay. The four-day week campaign may well gain further traction and as we have mentioned, there may be further developments in this area if the Labour Party win the next election, we’ll have to wait and see.
Certainly, particularly among younger workers, we are noticing more of a focus on maintaining a healthy work-life balance and this is something that has already been embraced by other European countries such as France where it is seen as a fundamental right.
I understand that French law requires every employee to spend at least 11 consecutive hours away from work. They also take their downtime very seriously and are allowed to take 2 hours for lunch to wind down with friends and family. It sounds like the dream if you ask me!
Victoria Wenn
Yes! As you say, they have the right not to be contacted by their employer after a certain time in the day. In fact, the Labour party are proposing to introduce the same thing in the UK if they win in the next general election, which they are calling a “right to disconnect”.
So I would agree with you – even if we do end up going to the office more than we are now, I think there is undoubtedly going to be an increasing focus on flexible working and maintaining a work-life balance and it’s going to be really interesting to see how this plays out in the future and particularly how it is dealt with by the Employment Tribunals going forward.
Jonathan Rennie
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