A step forward on flexible working, but still a long way to go

After much speculation and following the review of the Flexible Working Taskforce, the Department for Business, Energy and Industrial Strategy (BEIS) is set to announce tomorrow that workers will be allowed to request flexible working from day one at a new employer. Currently, they have to be in a job for 26 weeks before formally applying.

This would definitely be a step forward because one of the big problems of flexible working has been that if you are in a flexible job it is hard to move on because you have to wait for 26 weeks before you can get flexible working in the next job unless your employer is open to negotiation.

If advance reports are correct, the announcement is, however, likely to disappoint many who were hoping that flexible working would be made the default ie employers would have to justify why a job couldn’t be done flexibly. They say there is talk of strengthening the existing legislation and a proviso that employers who turn down a request may have to suggest an alternative, but the devil will be in the detail.

According to the current legislation there are several vague reasons why an employer can turn down a request, from ‘an inability to reorganise work amongst existing staff’ to the fact that the request will have ‘a detrimental impact on quality’.

Any employer minded not to accept a request could cite one of these and we have had many, many emails from working mums who have had a reasonable request turned down, without much consideration, on these grounds.

In fact, we have asked employment lawyers if they know of any successful cases which have been taken by people who have been turned down for flexible working under the legislation and they have not been able to cite one where there was not also a claim of, say, indirect discrimination on the grounds that women are more likely to be the main carers and therefore need flexible working more. But flexible working is open to everyone so what happens to those who are not mums who get turned down unreasonably?

If flexible working is not to be the default, there needs to be some kind of wording in the legislation that compels employers to show that they have done everything to comply and not merely, as it states now, that they have handled the request in a ‘reasonable manner’, which may include assessing the advantages and disadvantages of the application; holding a meeting to discuss the request with the employer; and offering an appeal process. An appeal is not a statutory right and none of the suggestions are things employers have to do.

It is also reported that the three-month deadline for dealing with a request will be tightened. Before the legislation was amended – and watered down – in 2014 to extend it to all employees who had worked for an employer for over 26 weeks, the timeline was much tighter and there was a right of appeal. Perhaps the new changes will mark a return to that. Even so, many people were turned down for requests without much thought having gone into whether or not the request could be accommodated. Job shares are a case in point. If a job cannot be done part time, could job share be a reasonable possibility? We get many emails saying job shares are not even considered. There are some financial barriers, but the benefits of job shares in terms of productivity, experience and much more are far greater than the extra NICs and could save on other costs such as recruitment and training.

Offering an alternative if a job truly can’t be done flexibly may sound good on paper, but it can disguise what are often effective demotions, something that has happened to many working mums. So we wait to see the small print and worry that, despite the welcome news about a possible day one right to request flexible working, the changes may not provide the spur to shift mindsets, to create an equal playing field when it comes to flexible working and to encourage reluctant employers – for instance, those still opposed to remote working despite having seen its results – to communicate better with their employees and understand more what many need to do their job to the best of their abilities.

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