Flexible working bill: what do employers need to know?

After a year of campaigning by the CIPD, employees can now request flexibility from day one, but what exactly does that mean for the people profession?

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Employees will be able to request flexible working from day one of their employment, under new government plans to make flexible working the default. 

The Employment Relations (Flexible Working) Bill, first introduced by MP Yasmin Qureshi, aims to give employees greater access to flexibility over where, when and how they work.

Under the new law, employers are required to consult with employees before rejecting their flexible working request, and workers have the right to make two requests in a 12-month period, while previously they could only make one.

Alongside this, the government announced a new law that eliminates exclusivity clauses and provides almost 1.5 million low-paid workers even more choice, enabling them to choose to work for several firms.

Since February 2020, the CIPD has been campaigning for organisations and the government to make the right to request flexible working a day one right. Chief executive Peter Cheese says the new bill will “normalise conversations about flexibility” from the start, and have “significant benefits for employees in terms of wellbeing and work-life balance”.

Meanwhile, in October, People Management asked experts if the bill would solve existing issues, to which commentators broadly praised the proposed change in law, but warned it could take time to “absorb and understand the entitlements”. 

In that vein, People Management asked employment lawyers and HR commentators what each component of the bill will mean now it is enshrined in law.

Flexible working

The CIPD’s #Flexfrom1st campaign, in support of the bill, stemmed from research revealing that flexible working practices were not fair, with nearly half (46 per cent) of British employees saying they didn’t have access to flexible working arrangements as part of their current role. 

During its campaign, the CIPD highlighted evidence suggesting that those who have greater flexibility report higher levels of job satisfaction, wellbeing and performance in their roles, and said the provision of more flexible jobs and workplaces would help organisations attract and retain a more diverse workforce, boosting their ability to address skills and labour shortages.

Furthermore, research by Reed previously found that jobseekers were increasingly searching for vacancies offering flexible working, which were allegedly more popular than four-day week working arrangements.

But despite a clear desire for increased flexibility at work, Richard Fox, senior consultant in the employment team at Kingsley Napley, says requests are unlikely to "mushroom" because the majority of positions that can be offered on a flexible-time basis after the pandemic have already been identified.

But that doesn’t mean it won’t change things, as “employers will need to be ready to deal with requests right from the moment they decide to recruit”, he  adds.

Nicholas Le Riche, partner at law firm BDB Pitmans, says businesses are likely to be “exhaling in relief” over these changes, but points out it could still be a complicated process. “Employers still have wide scope to refuse a request and can rely on eight reasons to do so,” he explains, adding that, while there is a suggestion that employers will have to offer alternative options, “we will have to wait and see quite how strict this duty is in practice”.

However, Simon Roderick, managing director of financial services recruitment firm Fram Search, says that if companies have to justify people coming into the office it will be a “disaster”, especially for SMEs. “Smaller firms, which have borne the brunt of Covid restrictions, will struggle, and there is huge value in office time. I’m not sure this is an area the government should be legislating for,” he says.

Similarly, Zaid Patel, director at Highcastle Estates, says the most adverse effects of the new legislation will be felt by small businesses: “We don't usually have the time, resources or expertise to allow for the team to choose when they are working and keep customers happy at the same time. It's an additional stress to the many stresses we have.”

This echoes the views of Russell Brown, partner and head of employment practice at Glaisyers, who wrote in People Management in October that “a growing number of employers are now expressing regret over their willingness to agree to flexible working arrangements”. Brown claims that the arrangements were not “proving as successful” as employers had originally hoped.

Benefits for carers

Research from the Centre for Economics and Business Research for LinkedIn found that increased flexibility could open up new work opportunities for millions of people, including carers and people with disabilities.

Dr Miriam Marra, associate professor of finance and director of EDI at Henley Business School, says working parents would benefit most from the bill. “Working parents, not only working women, are certainly one category of often under-utilised and very often discontented employees,” says Marra. But she adds that “flexible work is not a panacea to all their challenges”, and must be combined with carefully provided reward solutions.

Similarly, Idris Arshad, people and inclusion partner at St Christopher’s Hospice, says for employers it added pressure to figure out “how it can work for the employee” and make sure it “doesn’t go wrong”, but that there is still a long road ahead.

He says the ability to make two requests in a year will be beneficial to parents and carers, but adds that “there is still a long way to go in ensuring the mindsets and attitudes of organisations promotes, welcomes and makes flexible working and more broadly inclusion the norm”, and that there will still be barriers to inclusion.

However, Molly Johnson-Jones, founder and CEO of Flexa Careers, is concerned the bill will be “riddled with issues in practice”. “Giving people the right to request flexible working from their first day of employment doesn’t make a jot of difference when the ways of working often aren't revealed till much later,” she says.

Johnson-Jones says there may be tension between employees who make flexible working requests and companies that wriggle out of accommodating them. “This will leave workers with caring responsibilities or disabilities – who start new jobs in good faith that their flexible working needs will be accommodated – in hugely precarious positions if their requests end up being turned down,” she explains. 

Indeed, research by Working Families and SF Recruitment indicates that employers wishing to retain parents must wrap their head around the bill quickly, as more than half (55 per cent) of parents would leave their role for another with better flexibility.