Could the law on flexible working change?

A Conservative MP has suggested flexibility could be built into all jobs by law, to reflect changing attitudes to childcare. Emma O’Connor considers the possibilities

As the law currently stands, the right to make a flexible working request is open to all employees with 26 weeks’ continuous service who have not made a request within the last 12 months. A job could be considered suitable for flexible working where the hours or location could be switched or if it offers options for job sharing, for example. The onus is on the employee to make an application setting out the type of flexible arrangement required and why their role can be worked flexibly.

If approved, the change becomes permanent. If not, there are certain statutory grounds to support the rejection, among them increased costs. While advisory service Acas has issued guidance and a code of practice for employers on handling requests in a ‘reasonable manner’, in practice there is usually a negotiation with each party achieving their least worst position.

What would a change in the law mean?

According to statistics in parliamentary magazine The House, 87 per cent of employees would like to work flexibly but just 9.8 per cent of jobs paying more than £20,000 are advertised as flexible. If the flexible working bill – introduced into parliament this summer by MP Helen Whately – were implemented, flexible working would be the default position for all employees, rather than it being up to individuals to request. 

While employees with families would be clear winners under the bill, should it become law, many charities and representative groups say those with caring responsibilities or disabilities would also benefit, as would those who want to combine work with study or who simply want to cut down their commute. Further, if better-paid full-time jobs were made flexible, it could improve the gender pay gap in many sectors. And flexible working arrangements are often for a relatively short space of time when we consider the length of a person’s career.  

There is no suggestion in the new bill that all jobs have to be offered on a flexible basis. However, many employees cite flexibility as a major benefit. Sectors such as hospitality often struggle to offer flexibility in shifts, causing high rates of staff attrition. 

Flexibility and the ‘employee experience’

Getting more people working is certainly good for the economy, but is there a downside? Does flexible working deliver on the employee experience? 

Some employees have experienced ‘flexism’ at work – being excluded from meetings, networking or training opportunities because they are not present. Many describe part-time work as entering a ‘career cul-de-sac’, with no prospect of progression up the career ladder. 

With a working culture still rooted in the five-day ‘1950s model’, a lack of flexibility can often leave flexible workers feeling isolated and disconnected. Flexible workers need to be ‘flexible’; however, feeling pressured to work on non-working days defeats the object of the arrangement. On the flipside, some managers will say – off the record – that it is difficult to balance flexible working with getting the job done. 

Does there need to be a reality check on the part of both employer and employee when it comes to flexible working?

The success or failure of flexible working is about changing organisational attitudes and this comes from the top. If a business wants to be a ‘destination employer’ that helps and supports its people, gives opportunities for promotion and values contribution, cultures need to shift. If not, employees will look for more flexible opportunities elsewhere. If we focus on output and not presenteeism, we will drive up productivity and engagement. 

Flexibility is about trust. If we trust our people, we can foster relationships and communicate while setting clear boundaries and expectations. This will go a long way to supporting ‘flex for all’ but I am not sure if parliament can legislate for this. The onus is on employers.

Emma O’Connor is a senior associate in the employment group at tech law firm Boyes Turner