One step forward on flexible working

The Government’s long-awaited response to the flexible working consultation moves things a step forward, but there is still a way to go.

Woman working from home


There was celebration of a kind earlier this week as the Government announced, finally, that it was supporting a day one right to request flexible working, ie you would no longer have to be in a job for six months before you can ask for flexible working. Enabling people to request flexible working from day one is certainly a step in the right direction, but it has taken quite a time to get this far and the right to request legislation is very weak.

Having to wait for six months was a definite barrier to anyone who already had flexible working to move on and progress, although a growing number of employers are way ahead of the Government on this and advertise that they are open to flexible working in their job adverts. Some have mechanisms in place which mean that hiring managers have to justify why a job can’t be done flexibly. The aim is to make flexible the default and not working flexibly the oddity. Such employers are by no means the norm yet, though, despite the acceleration of remote working – one form of flexible working – over the course of the pandemic.

The right to request legislation has so many get-out clauses for employers in any event. The reasons they can turn down a request are very vague [for instance, “performance will suffer”, a fairly subjective concept] and there is no statutory right of appeal. Under the new proposals, employers at least have to consult with their employees to explore the available options before rejecting a flexible working request. All too often employees write to us saying they have simply been told one of the eight reasons for their request being turned down, with no attempt to discuss it, understand the reasoning behind it or find some sort of compromise.

The new legislation will also remove the requirement for employees to set out the effects of their flexible working requests to employers. The Government says the aim is to encourage both employer and employee to have constructive and open-minded conversations about flexible working and find arrangements that work for both parties.

Flexible working is all about negotiating something that works for both business and employee. Through those conversations it will become clearer what the block is and whether employers – particularly line managers – need more support.

A survey in 2016 showed over a quarter of mums in work [26%] had had a flexible working request turned down. Some 12 per cent said their employer did not even seem to consider their request at all and over a quarter [27%] said the reason given for turning down the request was not one which is allowable under the legislation. Of women turned down for flexible working while on maternity leave, 68% said they did not feel the rejection was justified.

Our most recent survey shows nearly a quarter had had their flexible working taken away from them at some point. Interestingly, mums seem less likely to just accept that decision now.  Over 40% said they had left their job as a result. In fact, the survey shows how flexible working has now become a deal breaker for nearly three quarters of mums when considering a new job while 40% said they had turned down a job offer due to a lack of adequate flexible working. 75.52% say that they would feel more confident asking for flexible working since the Covid pandemic while over 86% would investigate an employers flexible working policy before applying for a new job.

The new legislation is behind rather than ahead of the curve. There is still a long way to go to get flexible working normalised. Until that happens, a lot of employers are going to see people walking away or not applying for their jobs. The situation may change if unemployment rises during the recession and the labour market swings away from candidates. But that doesn’t seem to be happening at the moment and the longer term picture is that employees want flexibility and are willing to vote with their feet, if necessary, to get it.

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