Labour employment proposals: looking behind the headlines

Labour has emphasised that reform of employment law and protection of worker rights is one of its main priorities for the autumn. While high level details of the Government’s proposals were outlined in the King’s Speech in July, until a draft Employment Rights Bill is published we remain fairly light on detail. This hasn’t, however, stopped media speculation about the potential scope of Labour’s employment plans.

In this blog, we look beyond the headlines on two of Labour’s employment proposals – the right to switch off and making flexible working the default – to examine the differences between recent media reports and what is actually known so far. 

The right to switch off

At the end of August, several papers reported that “staff repeatedly contacted about work out of hours could get thousands in compensation”. This refers to Labour’s proposed"‘right to switch off", promised in its Plan to Make Work Pay (which the Government has said it intends to implement in full) as a way of promoting a positive work-life balance for workers. 

At this stage, we have very little detail about what this right might look like and how it might operate. Here is what we do know:

• The Government is not intending to introduce an outright ban on employers contacting employees outside work (it recognises there are circumstances where such contact may be necessary).
• It plans to follow similar models to those already in place in other countries. In Ireland, for example, a non-binding Code of Practice requires employers and employees to produce a tailored policy for their workplace, and in Belgium employers with over 20 employees are required to produce guidelines on the appropriate use of communication devices. In both countries, there are no specific sanctions for breach by employers, though an employer’s failure to comply can be taken into account in proceedings relating to working hours.
• Reports suggest that the Government is intending to introduce its right to switch off via a Code of Practice, rather than legislative change. This could be accompanied by a power for tribunals to uplift compensation in the event of breach. The indication is that the onus will be on employers to agree bespoke workplace policies with staff.
  
  

As yet, however, we have no information about the level of any potential uplift, or what claims it might apply to. What is clear is that any proposals will be subject to consultation before anything is implemented. Given this, speculation in the press that the right to switch off will lead to workers “securing bumper payouts” seems premature at this stage.

Making flexible working the default

A flurry of headlines (and here) recently proclaimed that “Employers will have to offer four-day week under new [Labour] plans” and “Workers in UK to be granted right to demand four-day week”. In fact, what is being proposed looks rather different to this. 

Labour’s actual intention is set out in its Plan to Make Work Pay and reiterated in the background notes to the King’s Speech. As part of the Employment Rights Bill, Labour intends to make “flexible working the default from day-one”, with employers being required to accommodate this “as far as is reasonable”.

Clearly what counts as “reasonable” will be crucial in determining the extent of an individual's right to request flexible working. Currently, employers have significant scope to turn down a flexible working request (there are eight broad statutory business reasons that can be used to justify a refusal). It seems likely that under Labour’s plans, this ability to refuse requests will be curbed. We don’t yet have details on how this will be done, but possibilities include reducing the business reasons for refusal, introducing a higher burden on employers to evidence their position in order to prove reasonableness, or putting employers under a positive duty to explore alternatives where a request isn’t feasible.

What is clear is that workers’ rights to request flexible working will be strengthened as a result of Labour’s plans and employers will be under a greater duty to take steps to accommodate changes where reasonably practicable to do so. In contrast to recent headlines, however, a government spokesperson has confirmed it does not intend to impose changes on employers. Any plans will also be consulted on before coming into force.

For further information on handling flexible working requests, see our blog top tips for employers.  

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, September 2024