Timely Change to Flexible Working Law

Posted on April 09, 2020

← Back to Info Centre

Advocate John Aycock of M&P Legal explains how a recent law change has simplified and extended the right to request flexible working, but some consequent rule changes are still awaited.

Timely changes to the Isle of Man’s flexible working regime have been made, although they are coincidental to the Covid-19 enforced surge towards home working at this time.

Changes to the Employment Act 2006 were made in January 2020 by reason of the Equality Act 2017. The main thrust of the changes is to remove many of the prior restrictions on those employees who could seek flexible working. The two principal changes made were:

1. The right to request flexible working is extended to all employees not just to those who had parental or caring responsibilities; and

2. The somewhat lengthy and prescriptive process an employer had to follow when in receipt of a request is much simplified and based on acting reasonably.

In addition, regulations to support the new law are due to be approved by Tynwald soon. They propose to remove the 26-week service requirement for flexible working applicants, something not even the UK has done. These regulations are the missing piece of the jigsaw and will also set out the method by which a request for flexible working is to be made. The current regulations from 2007 are inconsistent with the new law and of little use. In this limbo period we have new law and old regulations.

The welcome recent law change has been somewhat overtaken by events. The rule book has temporarily been torn up so that societal welfare is prioritised and employers almost overnight have had to become very flexible. Depending on how it goes, this enforced work from home might entice staff to request flexibility even when the Coronavirus has done its worst. Some may get the taste for flexibility and deploy the new found freedom in effecting such a request. Others may crave a return to normal office life.

Those staff who wish to pursue possible flexible working will need to look at the formal legal position and the recent changes. They will see that the new law means many more employees have the statutory right to request flexible working. Flexible working can involve many different patterns of work including stretching or compressing hours, flexitime, home working, job sharing, shift working, staggered hours or term time working.

When enlivened the 2020 Regulations will set out:

  • Who is entitled to exercise the right to request flexible working conditions;
  • How an application is made;
  • The calculation basis for the date on which an application is taken to be made; and
  • The maximum amount of compensation that can be awarded by the Employment and Equality Tribunal for a breach of the statutory right.

A draft of the regulations is currently annexed to the Department for Enterprise’s excellent guide to the Flexible Working Regulations 2020. When these 2020 Regulations are fully in place all employers should update their handbook procedures which will very likely now be out of date, probably having been based on the 2007 such regulations.

The new regulations should certainly be in place by the time Covid-19 has taken its toll. This pandemic will leave substantial marks on many aspects of life, principally the human cost. It might also change attitudes, hygiene habits and future working patterns.

Provided IT infrastructures can take it, the Monday to Friday 9 to 5 routine might become holed below the waterline. For those who wish flexibility to become more permanent, there will be a much easier framework to make that request when life and business can revert to some normality.

Advocate John Aycock is head of the M&P Legal employment unit and has 30 years’ experience of labour law in three different jurisdictions.

Back to top