WFH, WFV, WFFH and WFT: where next for flexible working?

This month it was reported that Tesco has announced a partnership with office space provider IWG to trial a flexible working space in its New Malden store.  The space will comprise 12 private desks, 30 co-working spaces and a meeting room.  The idea is that it suits workers who prefer to work locally and it suits a large supermarket which does not need as much space as before.  As we shop online for once common supermarket items like electrical goods, films and music, large retail space is needed less.  Tesco already shares sites with other brands such as Pets at Home and Timpson.

The story piqued my interest because of the possibly endless opportunities presented by flexible working.  Whilst working from home became mandatory for many during the pandemic, and has remained commonplace since then, I’ve enjoyed seeing the creativity employed when work requires only a laptop and internet connection.  WFV (Working from Villa) is a glamorous option for some, WFFH (Working from a Friend’s House) offers some companionship without the commute and now we have WFT (Working from Tesco).  For those homeworkers who complain about the fridge being too close for their health, I’m not sure that an entire supermarket of food is any better!

The current law on flexible working is relatively straightforward and was simplified a few years ago.  In essence, if an employee has been with the business for six months and has not asked in the last year, they can apply to work flexibly.  The request could be for any changes to their working pattern but it tends to be the proposal of fewer or shorter days or to work some or all of the time remotely.  Requests have to be handled in a reasonable manner and within three months, which means employee and employer meeting to discuss how it might work in practice.  It can be easy for businesses to say no by pointing to one or more of the following eight reasons:

• The burden of additional costs
• Detrimental impact on ability to meet customer demand
• Inability to reorganise work among existing staff
• Inability to recruit additional staff
• Detrimental impact on quality
• Detrimental impact on performance
• Insufficiency of work during the periods the employee proposes to work
• Planned structural changes

In some cases, saying no could be indirect sex discrimination where a woman has childcare responsibilities, so employers also need to consider their obligations in that respect too.  It’s also possible that flexible working could be required as part of an employer’s obligation to make reasonable adjustments in relation to a disabled employee.

At the end of last year the government launched a consultation over a number of changes entitled “Making flexible working the default”.  Despite the name, there was no suggestion that flexible working would become an automatic right and indeed it would be difficult to see how it could be across the many different workplaces and jobs in the country.  If there are to be any changes to the law, it seems most likely that flexible working will become a “day one” right, without the requirement of the current six months’ service.  We may also see some amendments to the eight reasons for rejecting an application.

As things stand, the government has not taken matters further and nothing about it was mentioned in this month’s Queen’s Speech.  So it appears that no changes are coming in the immediate future but, as flexible working has become a permanent part of life for so many, we can expect the law to develop in the coming years.