Flexible working: the story so far

Karen Holden from A City Law Firm outlines the discussions over the future of flexible working as a key Government consultation ends.

Woman working from home


Following a new report on working parents and flexible working post the pandemic, where are we in the UK with flexible work? The report produced by the charity Working Families, the Global Institute for Women’s Leadership [GIWL] at King’s College London and the University of East Anglia, and funded by the Nuffield Foundation, discusses whether the government’s new proposals are likely to go far enough.

What is the law on flexible work?

Currently, any employee with 26 weeks service to their employer may make a request for flexible working. They may make only one request for flexible working within a 12-month period. If agreed, the change will become a permanent change to the employee’s contract. This could be a change to the hours, location or time the hours are worked, job sharing or time off in lieu.

The employer has eight reasons that a request for flexible working can be refused. These include:

– The burden of the additional costs;
– The inability to reorganise work among the other staff;
– The inability to recruit additional staff;
– That there will be a negative effect on quality;
– That there will be a negative effect on performance;
– There is not enough work for you when you have asked to work; or
– There are plans to change the business and the employer believes the request will not fit in with the new plan.

The employer should consider and discuss the proposal, but is under no obligation to agree if it can verify one of the above grounds. Given the extensive and somewhat vague list, it would be pretty easy for an employer to reject the request, providing it can show the decision is not discriminatory. In 2019, figures showed that one in three flexible working requests were rejected.

So, is the law and its practical application on flexible working functional for employees and in particular families?

The Government consultation and the new Working Families report

The new Government proposals and consultation (which closes today) propose that employees may request flexible working from day one in a job and that one week’s unpaid carers leave should be available to those with caring responsibilities. The consultation also discusses the limit of one request in each 12-month period and the three-month response time for employers.

Although the above suggestions, if enacted, would improve the position for some families, there is talk that the reforms do not go far enough.

The new report from Working Families, the GIWL and the University of East Anglia was drafted following focus groups with a cross section of UK working parents from a variety of fields. Looking at questions regarding job quality, compromises made and the effect of the pandemic, the report suggests:

– Many parents are still battling gender-based assumptions by employers;
– Control and predictability are job qualities which are particularly important for parents;
– There is increasing evidence that fathers are wanting to play a greater role in care giving but find that their job inhibits this; and
– Flexibility was talked about the most when discussing what job qualities become important after becoming a parent.

Additionally, the report’s participants cited the main barriers to working flexibly as business needs, an unsupportive workplace culture and a lack of knowledge amongst line managers.

The report concludes that when workers become parents certain aspects of job quality become more important such as: security and permanence, job control, financial security, support from managers and flexibility. Some parents reported not being able to access flexible working and others reported that if they did have it, it was not functioning optimally.

The consequence of this is that often trade-offs are made, most commonly with regard to pay or work progression. Many parents who had been able to work flexibly during Covid felt strongly that their working life should not revert to how it was pre-pandemic.

Recommendations for employers in the report included that: all jobs should be considered and advertised as flexible, if that’s possible and unless there is a strong business case that this is not workable; that an unsubstantiated ‘business needs’ response should not be used to deny flexible working requests and alternative working arrangements should be suggested instead; that greater parity between part-time and full-time employees for pay and progressions is required; and asking working parents what they need and value rather than relying on assumptions would improve job quality for parents.

As an employer it is always going to be difficult to find a balance if you need onsite workers; if you need to train people face to face; and if you need client-facing personnel. And, sadly, there will also be those that abuse the system and that needs to be addressed. As such, employers should set out clear policies and processes as well as transparent targets and arrangements that can be used to monitor and incentivise workers and they should ensure arrangements work for both employee and employer. Parents should be encouraged to openly discuss their needs along with the employer’s needs so that a mutual plan is agreed because both want to make it work. By fleshing out the details together there is more likelihood that any arrangement will be a success and both parties will be committed to making it so.

*Karen Holden is founder of A City Law Firm. Having been admitted to the roll in 2005. Karen was invited and given freedom of the City in 2019 for her work in Equality as such is part of the Guild of Freeman. A City Law Firm is currently recruiting for a commercial/corporate solicitor. See their job advert here.

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