Remote and hybrid working are flexible working arrangements that have increased following the Covid pandemic and its associated lockdowns. Before the pandemic, just 4.7% of UK employees worked from home either all or some of the time compared to 39% in June 2023 (Forbes, 2024).

There are many reported benefits of remote working, including:

• increased diversity and inclusion in the workforce (for example by opening up opportunities to parents, carers and/or individuals with disabilities);
• widened recruitment pool to get the best person for the job, regardless of geographic location;
• better work-life balance for employees, leading to happier, more motivated staff;
• increased productivity; and
• decreased office costs.

There are also several reported benefits to office-based working, however, including:

• learning and development opportunities (e.g., learning by osmosis);
• increased collaboration;
• social and cultural well-being; and
• helping to maintain boundaries between work and home life.

It seems, however, that post-Covid employers are struggling with how best to reap the benefits of remote and hybrid working whilst also harnessing the benefits of in-person working. According to the Virgin Media O2 Movers Index, 83% of businesses are enforcing mandatory in-office policies to rebuild office culture and foster collaboration, whilst, on the other hand, 75% of businesses believe in a hybrid future.  

What is the UK’s position on flexible working and what’s changing?

In the UK, there is a right to request a flexible working arrangement, but not a right to have one. The regime sets out a statutory procedure for how an employee can make a request for a flexible working arrangement and how an employer must respond to these requests, and sets out eight grounds for when an employer can deny such requests.

In its 2019 Conservative Party manifesto, the government committed to “encourage flexible working and consult on making flexible working the default unless employers have good reasons not to.” The government then ran a consultation in 2021 on “Making Flexible Working the Default” looking at how to reform the regime post-Covid. It noted that flexibility is key to the future of work, which means “focusing on all forms of flexibility – when you work as well as where you work – freeing employers and employees alike from the default 9-to-5 model in order to recruit and retain the talent we need.” It was against this backdrop that the Employment Relations (Flexible Working) Bill passed last year – which we wrote about here. Finally, on April 6, 2024, the changes to flexible working requests came into force alongside a revised Acas code of practice and guidance on flexible working (here and here).

The changes have built upon the previous flexible working regime and are largely procedural in nature, aimed at reducing the burden on employees during the process and ensuring greater transparency and consultation on behalf of employers. Accordingly, much of the statutory regime has remained the same, but the following changes to the regime now apply as of April 6, 2024:

• Employees can make a request on “day one” of the job and are no longer required to have 26 weeks’ continuous service.
• Employees can now make two flexible working requests in any 12-month period, rather than just one.
• Requests must be dealt with by employers within a shorter period of two months, rather than the previous three-month period, unless an extension is agreed between the employee and employer.
• Employers must consult with the employee before refusing a request. The new Acas code of practice sets out how this consultation process should be conducted and entails holding a consultation meeting with the employee to discuss:
  
  • the request itself;
  • the potential benefits or impacts of accepting or rejecting the request;
  • practical considerations involved in implementing the request; and
  • whether there are any potential modifications that could be made to the request that would be acceptable to the business if the request cannot be accepted in its original format.
• Employees no longer have to explain the potential impact of their flexible working request on the business and how these may be dealt with (although, as explained above, this may still form part of the discussion during the consultation meeting).

Employers will need to amend their policies and procedures to reflect these changes.

What impact will the changes have on remote working and hybrid working?

The changes to the regime are intended to encourage flexible working and increase the number of employees within the scope of the entitlement. The government’s announcement on the passing of the Flexible Working Bill recognized that “not only does flexible working help individuals fit work alongside other commitments – whether it’s the school drop off, studying or caring for vulnerable friends and family – it’s good business sense too, helping firms to attract more talent, increase retention and improve workforce diversity.”

It remains to be seen whether the greater emphasis on consultation and tighter response timeframes mean that employees making statutory flexible working requests will feel more confident that their employer will consider it properly and quickly. It is also a potential mechanism employees could use against employers that wish to call all employees back to the office five days a week.

Despite the intent, the changes are more procedural in nature and employers still have broad grounds upon which to reject a statutory request. This doesn’t mean that employers shouldn’t take flexible working requests seriously. Employers may wish to explore why the employee is making such a request to prevent them being on the end of a discrimination claim, for example for sex discrimination or failure to make reasonable adjustments.

These recent changes are not likely to be the end of the story though, as some campaigners have been calling for a statutory right to have flexible working as the default for all – taking the current position a step further. If the Labour Party were to win the next election, it could be that the balance shifts in this direction, as one of the Labour Party's proposals is to make flexible working “a default from day one, with employers required to accommodate this as far as is reasonable.” Whether this is a right to have flexible working, or simply a call to adapt and build on the existing framework, remains to be seen.

Regardless, it seems that remote and hybrid working isn’t going anywhere and that employees are, in fact, demanding it. A recent survey by FlexJobs reported that 95% of professionals want some form of remote work, with 63% choosing remote work as the most important aspect of their job (above salary). It may also be true that, as technology continues to advance, some of the benefits of in-office working (such as collaboration, learning by osmosis, etc.) may be able to be replicated remotely from anywhere. Who knows? We could all be working in the metaverse in 2035!

So, despite some media reports of a backlash against remote or hybrid working and the current changes to the flexible working regime being largely procedural in nature, it is likely that external pressures from the market, the promise of an election and advancements in technology will mean that such ways of working aren’t going anywhere.

*Hannah Drury is a Trainee Solicitor at GQ|Littler.