The Government has committed to making flexible working the default way of working. This paper outlines how they can achieve this in a way that is meaningful, beneficial to employees, and also works for employers.
Context:
In April 2024, the Employment Relations Bill (Flexible Working) came into effect. The Bill removed the requirement on the employee to explain what effect, if any, the flexible working request would have on the organisation and how it could be dealt with. It allows employees to make two statutory requests within a 12-month period (an increase from one). It reduced the maximum time that employers have to respond to a flexible working request from three months to two months, and it introduced a requirement on employers to consult with the employee before rejecting a flexible working request. The government also introduced a day one right to request flexible working for employees via secondary legislation. The right to request flexible working commences from the first day of employment.
Although this was a step in the right direction, it does not go far enough. We believe it will make a limited difference to employees and the numbers who work flexibly.
Why this matters:
As well as committing to making flexible working the default way of working, the Government has also committed to growing the economy. We know that companies which embrace flexible working have better staff retention and motivation and that it improves recruitment opportunities. There is also research which shows it can boost productivity. Moreover, we know that there are a number of people locked out of the labour market due to a lack of flexible working. According to research by Timewise, 93% of non-workers who would like to work, would prefer to work flexibly, while only 22% of ‘quality jobs’ are advertised as flexible.
Flexible working is also good for the economy; to raise productivity we need to enable more people to move into higher paid, more productive jobs. 2023 research by the Fawcett Society found 30% of respondents had experienced applying for a job but having to turn it down when the employer was unable to offer the flexible working that they needed.
To truly make flexible working the default, we need a decoupling of flexible working arrangements being seen as a working pattern which is mostly granted to or demanded by mothers. 2024 Pregnant Then Screwed research finds that mothers who are working full-time are 2.5 times more likely than full-time dads to request flexible working. Reducing barriers to flexible working opportunities will change this.
How can the Government fulfill its manifesto pledge:
The primary way the Government could fulfill their manifesto pledge to make flexible working the default is an advertising duty.
What is an advertising duty?
An advertising duty would require an employer to consider what types of flexibility they can offer for a role and advertise it upfront in the recruitment process, with the new postholder having a day one right to take up the flexible working arrangements that have been advertised. If an employer does not think that any flexible working arrangements are possible, they should be required to set out the exceptional circumstances that justify this decision.
Alongside this there must also be a day-one right to request flexible working for all workers, with the criteria for rejection mirroring the exceptional circumstances set out above. Workers should have a right to appeal and no restrictions on the number of flexible working requests made.
How would this be enforced?
We believe that the duty to publish specific flexible working options in an advert, or set out why flexible working cannot be accommodated in line with the above, would not be complicated to enforce and would be easy for most employers to implement. We propose that responsibility for enforcement sit with a newly created Single Enforcement Body.
The body should monitor compliance and provide a route to take action, including imposing financial penalties against employers breaching the rules. Furthermore, the creation of a Single Enforcement Body reduces the need for employees to have to proceed down the employment tribunal route and instead opens the door to a faster and cheaper administrative route. This will place more incentive on businesses to act. For the body to work effectively the government must confirm long-term sustained funding and the government must provide a clear timeline for when the body will be introduced.
Gender pay gap reporting has evidenced that simply encouraging employers to voluntarily provide information is largely ineffective. Sustained promotion of voluntary gender pay gap reporting resulted in 280 employers signing up to the scheme, but only five employers actually went on to publish their data. However, when mandatory reporting was introduced more than 10,000 employers reported their gender pay gap in the first year.
The 2021 BEIS consultation on making flexible working the default stated that a day one entitlement to request flexible working, would encourage employers to consider what flexible working is available in advance of the recruitment process. Our recommendation is that the success of this should be tracked in light of Timewise data from 2023 suggesting that advertised flexible working has plateaued. Whilst it is too early to interpret this as a reflection on the new legislation, close monitoring will be helpful as an indicator of success for any further policy changes.
Changes to legislation must be accompanied by a public messaging campaign to ensure that individuals understand their new rights and when to report advertisements. The campaign should also support and encourage businesses to design flexibility into jobs.
Why would this fulfill the manifesto pledge?
An advertising duty would be of significant benefit to anyone with caring responsibilities, especially recipients of Universal Credit. Recipients would know in advance of applying whether a job will fit in with the minimum hours requirement and whether it will work with their care arrangements. This would remove the risk of recipients taking a role, submitting a day one flexible working request and then having to leave should this request not be granted, resulting in financial sanctions by the Department for Work and Pensions.
Zurich Insurance conducted research which shows that advertising jobs as flexible and making flexible working the default has positive impacts for employers, and on gender equality in the workplace, including seeing applications from women increase by 16%.
Moreover, TUC polling of HR managers found that 6 in 10 said it would be easy to include specific information about the pattern of home or remote working or house-based flexibility available in each role in each job advert, or they already do this.
The right to request flexible working is still a right to deny, and further research by the TUC found that 1 in 3 flexible working requests are turned down, whilst two in five mothers say they would not feel comfortable asking for the flexible work they needed at interview stage because they worried they would be discriminated against and rejected. Only 36% had asked for all the flexibility they needed in their current job and 31% had not asked for any flexibility because of worries that it would be turned down and might lead to discrimination.
Providing flexible working options in job adverts is also beneficial for the employer as it will attract more applicants. Research from Timewise suggests that 1 in 10 flexible jobseekers will not apply to a job advert that just claims the role is ‘open to flexibility’; a further three in 10 are cautious about applying. This is because people are unsure of what it means or worry that employers are not serious about offering flexible working, which they rely on.
Although we believe that an advertising duty is the only way to make flexible working the default, there are other ways to strengthen the current law.
1) Reduce the reasons for rejection
The current reasons for rejection are very wide and it is relatively easy to use one of the current grounds to justify refusing a flexible working request. When compared, for example, with the statutory grounds for a potentially fair dismissal, they are much wider.
While a delicate balance is needed to avoid being over-prescriptive our sense is that the reasons could be limited to the following:
– the burden of additional costs**;
– materially detrimental impact on ability to meet customer demand effectively; and
– insufficiency of work during the periods the employee wants to work
Given the benefits to an employer of retaining staff who need to work flexibly, it could be argued that the burden should be on the employer to deal with re-organising work amongst existing staff or recruiting additional staff. If an employee has to leave their employment because of a lack of flexibility then the employer will have to re-organise work among existing staff or recruit a replacement in any event so arguably these two reasons are otiose.
Secondly, any planned structural changes which will require changes to the workforce could be dealt with at the appropriate time through fair processes and procedures. It is arguably unnecessary for an employer to be able to use them as a reason to refuse flexibility.
With regards to an inability to meet customer demand, detrimental impact on performance or quality, these could be rolled into one provided that the detriment or inability is material in nature. At the moment, any potential detriment could be sufficient to enable an employer to refuse the request. The introduction of the requirement for the detriment to be material would mean that larger employers with greater resources would find it more difficult to rely on these reasons than much smaller businesses with more limited resources.
**In addition, the approach is currently a one size fits all with large global businesses, theoretically at least, being able to rely on say “burden of additional costs” for example as a reason not to grant an employee flexible working. One possibility would be to introduce a sliding scale in terms of business turnover for when an employer can reasonably rely on this as an objective reason for rejecting a request. Arguably, the costs of recruitment should an employee leave because of lack of flexibility should also be factored into this calculation. Another alternative might be to limit this reason for rejection to those businesses with less than say 250 employees, akin to the same businesses not being obliged to report on equal pay.
2) Make the right to request from job offer
The law stipulates that the right to request is from the first day of employment but this is nonsensical from both an employer and employee perspective. Employers and employees should be protected by law to have candid conversations about working patterns which work for both parties from the point that a job offer is made, otherwise an employee may leave a job that works with their personal obligations to join a new company, only to find that this does not work alongside their personal obligations. Ultimately, they may resign as a result creating a challenging and expensive recruitment process for the employer and leaving the employee unemployed. Many more people will not apply in the first place for fear that they will be unable to secure the flexibility they need to balance health conditions and caring commitments.
3) An express prohibition on blanket provisions, criteria or practices.
If an employer is to reject a flexible working request, they could be legally obligated to provide detailed written grounds (which fall within the narrower grounds for refusal outlined above) but which must have the individual request as the focal point.
4) Mandatory trial periods
Employers could be legally obliged to conduct mandatory trials of requested flexible working for a period of 6 months save in exceptional circumstances where the required flexibility is obviously unworkable e.g. a production line worker requesting to work remotely. Should the employer wish to terminate the flexible working arrangement at the end of the trial they should have to reasonably evidence how the trial did not work.
5) Higher penalties for failing to grant flexible working
As detailed in the enforcement proposals for the advertising duty, at the moment an employee is only entitled to up to 8 weeks’ capped pay. Removal of the cap could be considered or penalties could be brought into line with the new positive duty to prevent sexual harassment in the workplace e.g. if compensation for indirect discrimination was awarded, a Tribunal could have the power to uplift that by up to 25% for failure to allow flexible working with a separate claim for an award for injury to feelings being possible.
6) Greater powers for cases linked to protected characteristics
The EHRC could have greater powers to investigate and make recommendations concerning failures to allow requested flexibility. Together with or in addition to ACAS, the EHRC could provide statutory guidance which would be considered by a Tribunal as to the types of scenario where flexible working can and cannot be rejected.
7) Ability to appeal decisions to a third body
If an employee does not believe that the correct process has been followed, an ability to appeal to an independent set of eyes for a non binding resolution would limit the ability of firms to dismiss requests without due consideration. The third body could either be ACAS or the Single Enforcement Body.
8) Publishing flexible working policies
This could be part of gender pay gap action plans and could work as a stand alone duty on firms. This would make it easier for potential employees to see what is likely to be available to them.
This report has been compiled by Pregnant Then Screwed with support and input from
The Fawcett Society (contributors)
Osborne and Wise (contributors)
Primas Law (supporters)
Kilgannon Law (supporters)
Flexible Working Scotland (supporters)
For case studies please reach out to [email protected]
