he current legislative framework supporting flexible working is ineffective. As we have highlighted the current approach has not led to any significant growth in the number of people accessing flexible work despite that fact that our polling shows eight in ten people want it. And for one third of workers, the right to request is merely a right to be rejected. For those who do access it flexible working is a struggle, coming at a cost in workplace cultures where full-time working is the favoured norm.
The pandemic has highlighted that access to home working is unequal and without reforms, we risk a two-tier workforce, with flexible working haves and have nots, split along income, age and regional lines. We must also address the risks of home working that have emerged during the pandemic. This means moving from the current individualised approach to one where flexible work is the default.
The first step is to expediate the Employment Bill. The Bill, which was promised in 2019 to improve people rights at work, was absent from the Queen’s Speech in May 2021. The government has seemingly rowed back on its promise to boost workers’ rights following the UK leaving the EU.
The TUC believes government should use the Employment Bill to introduce a duty on employers to publish flexible working options in job adverts and give workers the right to take up the advertised flexibility from day one. TUC polling shows popularity for this ask, almost two thirds of people (63 per cent) believe that working people should get flexible employment rights working from day one in a job. If employers feel that a role cannot accommodate any form of flexibility, they should be required to transparently set out the exceptional circumstances that justify this.
The practical steps to this policy should be as follows:
1. when employers recruit to a post they would have a legal duty to consider which flexible working arrangements are available in the role and publish these in the job advertisement.
2. if an employer considers that no flexible working arrangements are appropriate for the new role, then they would have to set out the exceptional circumstances which justify this decision.
3. the new postholder would have a day one right to take up the flexible working arrangements that have been advertised.
In addition to this all workers should have a right to request flexible working from day one, with the criteria for rejection mirroring the exceptional circumstances set out above. Workers should have no restrictions on the number of flexible working requests made.
When a worker transitions from a full-time working pattern, to a more flexible option, a proper evaluation of their role should be undertaken to ensure that their job is appropriately weighted. The TUC recognises that in some roles it is common for part-time workers to work the equivalent of a full-time post in fewer hours. This can result in less time for career development, an unsustainable pattern of working excess hours or elements of working life encroaching on their time outside of the work environment.
The criteria which employers can use to justify refusing requests should also be more tightly drawn and there is also a need to strengthen the current legislation through allowing individuals to scrutinise and challenge an employers’ reason for rejecting a request. The right of appeal should not be optional. Employers should be required to consider appeals relating to flexible working requests. These should be not be conducted by those involved in the initial rejection of the flexible working request.
We have set out what we consider to be the most effective approach to making flexible working the default in workplaces across the UK, however in order for any new rights to have any impact on workers’ lived experience there needs to be a robust system for proactive enforcement. There should be a regulatory and individual route for enforcement.
In regard to a duty to publish flexible working options in a job advert, we feel that the Equality and Human Rights Commission (EHRC) is best placed to take enforcement action. They already have responsibility for taking action around discriminatory advertisements, including job advertisements, which breach the Equality Act 2010. The EHRC sets out a simple process for referring alleged breaches on their website. A similar system of enforcement would be effective in the case of a new duty to publish flexible working options (or a justification of the exceptional circumstances which mean that flexible working is not possible) in a job advert. A well-publicised website should be created and administered by the EHRC to allow individuals and organisations, including trade unions, to report suspected breaches of the new duty.
In the case of a failure of an employer to offer advertised flexibility to a successful candidate, we feel that the most appropriate route to redress would be through an employment tribunal.
We recommend that the government undertake a detailed technical consultation to ascertain the specific detail of the enforcement regime.
The EHRC must have its core funding increased to take enforcement action in this new area. In addition, we recommend that the EHRC is given extra programme funding to carry out an extensive monitoring exercise to assess compliance and effectiveness after new regulations come into force.
If the shift to home-based working reflects the preferences of workers in our polling this has the potential to have a substantial knock-on impact on other workers. As the report of the Senedd’s Economy, Infrastructure and Skills Committee highlights, “the shifting of office workers from city centres to local neighbourhoods has potentially huge implications for urban areas, service sectors and the public transport network”. We cannot risk drifting aimlessly towards these impacts and leave the direction of travel to chance, down to the cumulative impact of multiple decisions by individual employers. We note that the Welsh Government has set out a remote working strategy which includes a target of 30% of the workforce working remotely. Given the importance of the role that flexible working can play as we exit the pandemic and the potential range of impacts on different workers, we call on the UK government to set out a strategy for the future of flexible work that clarifies the role that flexible working can play in building a fairer, greener, more equal recovery from the pandemic. This strategy must include steps to ensure that the jobs of those who may be impacted by lower levels of office-based working are not threatened.
Reforms to flexible work must also eliminate one-side, false flexibility that is driven by employers and ban on zero-hours contracts. As a priority, we need to raise minimum standards and provide workers with much needed security. We are calling for:
· the abolition of zero-hours contracts by giving workers the right to a contract that reflects their regular hours
· at least four weeks’ notice of shifts, and
· compensation for cancelled shifts.
These measures would ensure that predictability, as well as flexibility is guaranteed for workers. For further details on our policy recommendations for insecure workers please see the TUC report: “Insecure work, Why decent work needs to be at the heart of the UK’s recovery from coronavirus”.
Steps must also be taken to ensure that flexible workers do not experience worse terms and conditions or negative impacts on their health and wellbeing. We are therefore calling for the following.
Trade unions can help secure greater access to flexible working and will play a key role in ensuring that flexible workers do not experience worse terms and conditions or negative impacts on their health and wellbeing. Workers and unions need additional rights to make it easier for unions to raise employment standards. We are calling for:
· unions to have access to workplaces and workers, wherever they are working from, to tell workers about the benefits of union membership and collective bargaining.
· new rights to make it easier for working people to negotiate collectively with their employer.
· the establishment of new bodies for unions and employers to negotiate across sectors, starting with hospitality and social care.
To ensure that flexible workers do not lose out, we are also calling on the government to ratify the International Labour Organisation’s Home Work Convention. The convention calls for the equitable treatment of homeworkers in health and safety, protection against discrimination, access to training and the right to join and participate in trade unions. As well as ensuring equitable treatment of home workers, ratification would also require the government to adopt, implement and review a national policy on home working in consultation with “the most representative organizations of workers”.
As has been seen during the pandemic, flexible working can result in longer working hours. We therefore call on the government to introduce a statutory right for employees and workers to disconnect from work, to create ‘communication-free’ time in their lives. This should be included in the reinstated Employment Bill.
This right has been in force in France since 2016 and Ireland bought in a new code of practice on the right to disconnect this year. The Tanaiste are also reviewing plans to put the right to disconnect into law.
We are also calling for new legislative protections and statutory guidance relating to the use of AI to recruit and manage people, specifically the following.
We have set out some of the challenges with increased use of technology. With the rise in remote working, the TUC believes this is a crucial moment to ensure AI is being used responsibly. We are calling for the amending of employment and data protection legislation and provide for statutory guidance to ensure that no unlawful discriminatory decisions can be made using AI, secure appropriate work/home boundaries and privacy rights, and guarantee transparency and explainability in relation to technology at work (see the TUC's AI manifesto for proposals in full.
We are also calling for a statutory duty to consult trade unions in relation to the deployment of high-risk AI and automated decision making (ADM) systems in the workplace.
The increased use of technology and AI in workplaces also brings risks of an atomised and isolated workforce where important decisions are made by technology and without human contact. The TUC is also calling for a comprehensive and universal right to human review of decisions made by AI in the workplace which are high-risk and an express statutory right to in person engagement in relation to decisions made in the workplace which are high-risk.
In practice, this means that employees and workers should have a right to insist that they can interact with a human being rather than a machine or algorithm in relation to high-risk decisions. For example, job applicants seeking a new role or existing employees facing redundancy decisions could insist that they are interviewed and marked by a human rather than simply talking into a screen.
Employers need not wait for government to pass legislation, they should work with trade unions to develop a collective approach to post pandemic flexible working that ensures the benefits of genuine flexible working are available to all and the risks associated with flexible work, in particular home working, are addressed.
We recognise there may be challenges for employers balancing the preferences of workers and organisational requirements such as production cycles, the need for a 24/7 service and business hours that need to be kept to. However, a range of employers have embraced the benefits of flexible working through work with trade unions.
NHS Employers have published guidance on the business case for flexible work, CWU and Santander have recently negotiated a new remote working agreement which protects jobs and the needs of those who need a workplace, employers such as Historic Scotland, UK Power Networks and Centrica are offering staff flexible working hours such as annualised hours and some staff in the higher education sector have reported benefits of lower stress and higher satisfaction with work associated with the introduction of flexible working.
Employers should adopt flexibility by default and should consider what flexibility is available in different roles and ensure this is included in all job adverts going forward. The advert should set out the types of flexibility available rather than include a generalised statement. Current employees should have the opportunity to access the same flexibility. Flexibility could also include predictable hours and greater notice of hours.
Employers should ensure their approach to flexible working is effectively promoting equality through carrying out workforce monitoring to highlight any differences of experience or outcome between flexible workers and other staff. In particular, employers should monitor:
Employers should disaggregate this data for different equality groups and consider it when looking at what steps need to be taken to close gender, ethnicity and disability pay gaps.
As restrictions are lifted, employers should consult with staff and their trade unions on what their experiences have been like during the pandemic and what flexibility they would like as we come out of the pandemic. We believe trade unions are best place to work with employers to reach constructive solutions that meet the preferences of workers and organisational needs.
Following consultation, employers should review existing provision for flexible working and publish new or amend flexible work policies. This should be done with the relevant trade unions. Employers should continue to consult with trade unions in the future and workers should be given the opportunity change their flexible working arrangements if desired.
We recommend employers shape their approach to flexible working around the following set of principles.
Flexible work needs to be open to all, with flexibility the normalised default position in a workplace, rather than a perk reserved for a favoured few. The full range of flexible working options, should be considered, advertised in job roles and made available to current employees. The needs of one group of flexible workers, for example, home workers, should not be prioritised above others, for example, those who require predictable shifts.
Flexible working must be voluntary not imposed and workers should have an opportunity to change their flexible working arrangements, for example remote workers having the opportunity to return to full or partial office-based working should they so wish. Any contractual change related to flexible working should be negotiated with the recognised trade union.
Flexible working arrangements should reflect genuine, two-way flexibility, helping workers balance work and their life outside the workplace. We would strongly oppose the introduction of any steps which promote employers’ ability to have an “on demand” workforce, while minimising their obligations to the people who work for them, through such means as zero-hours contracts.
Workers must not be subject to discrimination or disadvantage as a result of their flexible working arrangements. Workers’ contractual terms, conditions and level of remuneration must not be diminished as a result of accessing flexible working including home working. The process for arranging flexible work should be transparent to ensure fair treatment for all workers.
Technology must not be used to make discriminatory and unlawful decisions about people at work and there must also be equal access to technology at work for all, regardless of characteristics such as age or disability.
Employers must ensure that they comply with their positive and proactive duty to make reasonable adjustments for disabled workers regardless of their work location or pattern. Flexible working, including home working, can be a reasonable adjustment itself.
Flexible workers, including home workers must have the same access to employer funded training and development opportunities as others. Training should be offered to line managers to support effective and equitable management of staff who work flexibly including remote workers and progression, participation in training and retention rates should be monitored.
Flexible work must not result in an atomised, isolated workforce. Employers must ensure that communication methods they use enable flexible workers’ full and equal participation and contribution in all areas of work life and allow workers to collaborate. This includes meetings between colleagues, supervision sessions and provision of information. Mechanisms must be set up to ensure that remote or part-time workers are not disadvantaged through being cut out of information exchanges between office-based workers.
Objections to flexible work, in particular home working, often come from a view that workers cannot be trusted to perform tasks when out of sight of their employer. People should be trusted to do their job and judged by their ability to carry out their role rather than by when and where they work.
Recognised unions must have access to all workers, regardless of where, when and how they work, and all workers must be able to access the support of a union at work. Time spent attending union meetings by workers should be treated as working time and therefore paid. Health and safety and union representatives should be able to visit and contact remote workers, with the agreement of the worker. Home workers must also have the same opportunity as others to stand for union positions, access facility time and facilities and to undertake any duties and training required as union representatives. Employers should ensure to follow the Acas code of practice for time off for trade union duties and activities so that union members who work flexibly are not disadvantaged.
Employers should respect the importance of clear work-home life boundaries and flexible working should not result in work intensification, for example working excessive hours or not taking sick leave. Workers must have the right to disconnect from work and have “communication-free” time in their lives to establish a decent work-life balance and appropriate boundaries between work and personal life, including when working from home and in relation to use of digital devices. Employers should negotiate right to disconnect policies with trade unions. These boundaries are essential to the core trade union demand of a fair day’s pay for a fair day’s work.
We encourage all employers to adopt the values we set out in our AI manifesto: Dignity at Work and the AI Revolution when considering the use of AI to manage people. No new technology should be introduced that infringes workers' right to privacy, breaches data protection legislation, or has a negative impact on their physical or mental health, or their safety. Workers’ right to privacy is strengthened when they work from home. Surveillance and monitoring of workers in their homes is likely to be unlawful. Monitoring a worker in their own private home can cause psychological stress and potentially infringes the right to privacy of their family members who also use the office space and computer.
Employer decisions should be transparent and negotiated through a trade union. This applies to any new technology used. It should be clear to people when technology is being used to make decisions about them at work. The way in which these decisions have been made must be easy to explain and understand. And there should be enough information available to workers and job applicants about the technology to ensure they can trust it will operate fairly.
Employers should negotiate collective agreements with trade unions on the introduction of new technologies and data, including any workplace surveillance and monitoring, with trade unions before they are implemented to ensure worker’s interests are respected.
As part of a transparent working environment, workers should have the right to human review of decisions made by AI in the workplace which are high-risk and the right to insist that they can interact with a human being rather than a machine or algorithm when high-risk decisions are being made about them.
Where it is agreed that work should be primarily carried out at home, employers should provide and maintain the equipment necessary for home workers to work safely and effectively. Employers should recognise that workers will experience inequalities in their homes, for example, the amount of space and furniture available to them. Equipment should therefore include all items needed by these workers not just IT equipment. Working from home can come with additional expense as costs are passed from the employer to the worker. Employers should provide support towards additional costs associated with home working such as heating and any upgrades required to achieve a secure and reliable internet connection.
Employers should not only meet regulatory health and safety obligations, but also promote decent work practices and standards agreed with the workforce. Employers should conduct risk assessments for those working from home accompanied by a trade union health and safety rep. These should include both physical and mental health, including the impact of isolation on the mental health and wellbeing of homeworkers.
 Senedd Economy, Infrastructure and Skills Committee (2021) Remote Working: Implications for Wales https://senedd.wales/media/nbbhxbrn/cr-ld14202-e.pdf
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