Flexible working changes, but it’s only a small step forward

New flexible working legislation has got Royal Assent, but there is still a long way to go to create an equal playing field when it comes to how we work.

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Flexible working legislation is changing – but not until next year – and it’s not probably going to make a lot of difference to most people.  While you will be able to ask for changes to your working pattern twice a year rather than once, your employer will have to respond within two rather than three months and they will be forced to consult with you and show they have considered alternatives if they have chosen to reject your request, the same broad eight grounds for turning down a request remain in place and there is still no right of appeal as there was when flexible working legislation was first brought in – before it was watered down when it was made available to a wider pool of employees.

A right to request from day one – instead of six months into a job – is promised in secondary legislation, but we are still unclear about what day one right means – does it mean at interview, after getting a job offer or once you have started a job and are, presumably, in a difficult position if you took it hoping it would be flexible and then have your request turned down two months in? We will find out in the next year. It’s a step forward, no doubt, and you have to be grateful these days for any step forward, but it seems to take a lot of energy to move even a millimetre.

Meanwhile, the attitude to flexible working still seems contradictory. Resistance to change is to be expected at times of uncertainty, but uncertainty looks likely to be the status quo for the foreseeable future. On the one hand, some parts of government are promoting flexible working as a way to get those who have dropped out of the workforce back to work [at no extra cost to them!]. On the other, there is still notable opposition, led by the government’s favourite paper, The Telegraph, to remote and hybrid working. As some employers grow exasperated by their failed attempts to lure people back to the office as frequently as they would like, a more punitive approach is being taken by a few.  A new policy introduced by City law firm Osborne Clarke will, for instance, see lawyers who work from home more than two days a week denied bonuses. Presumably, they have checked out the legality of this, being a law firm, and it would depend on what their bonus policy covers and how that is measured.

One problem with creating a two-tier system for those who work more remotely is that it could rebound on the gender pay gap. A recent US statistics show women are more likely to still be working more days from home than men since Covid. According to data from the Bureau of Labor Statistics, the share of men who worked at least partly at home on an average day dropped to 28% in 2022 from about 35% the year before. This compares to a much smaller drop for women, down from 41.5% to 41%.

Even at the start of Covid, this was the worry: that women would embrace hybrid working more simply because it made their lives easier as, usually, the prime carers, while men would be enticed back to the office where they would be more likely to be promoted. That, of course, may be not what is happening at Osborne Clarke – it will be up to them to drill down and consider the consequences, but it is likely to be a theme generally. Flexible working can be both the thing that makes work and having a family possible and the thing that stands in the way of equality at work.

Until women and men share the caring roles equally that is likely to be the case. And men will lose out too because they will see their children a lot less. I remember commissioning a neighbour doing work experience with me a while ago to do a study of teenagers in my area and what they thought of their parents’ ways of working. What came through loud and clear, and somewhat depressingly, was that they hardly saw their dads and, when they did, they were often grumpy and tired. Meanwhile, they tended to have strong relationships with their mums.

Despite the Covid experience and the work of those such as the 4-Day Week campaign, in the midst of a cost of living crisis everyone is trying to work as many hours as they can so things are unlikely to shift any time soon unless there is a rethink about joining all the dots more generally through a move to, for instance, more local, community hubs. This has so many advantages all round, particularly for the environment. We need to keep innovating and testing the ground to break out of the kind of silos that end up taking us backwards.



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