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Are flexible working laws imminent?

23 Jan 2020 By Hywel Roberts

Following a Queen’s speech announcement, nine-to-five roles could soon be the exception rather than the rule

Much maligned over her inability to get her Brexit deal through, you could be forgiven for assuming former prime minister Theresa May’s legacy was not an extensive one. But there is something significant happening currently that can be traced directly to May’s actions as PM. 

In October 2016 she commissioned a report into employment practices, which was subsequently published in July 2017 as the Good Work report, authored by RSA chief executive Matthew Taylor. As a result of recommendations outlined here, May made a speech urging employers to make flexible working a reality for all employees by advertising all jobs as flexible from day one, unless there are solid business reasons not to. 

To this end, the Department for Business, Energy and Industrial Strategy set up the flexible working taskforce in March 2018 to “widen the availability and uptake of flexible working”. With the support of the taskforce, Conservative MP Helen Whately introduced the flexible working bill in July 2019, which stated flexible working should be the default position for all employees. This was then included in the employment bill introduced as part of the first Queen’s speech of Boris Johnson’s new government in December 2019. (Along with other employment pledges, including to extend redundancy protections to prevent pregnancy and maternity discrimination, provide one week of extra leave for unpaid carers and give staff the right to keep tips in full.)

The proposal effectively turns the status quo, where an employer is largely within its rights to ask a worker why they need to work flexibly, on its head. But what else do we know about the legislation? 

Not much, according to CIPD senior policy adviser for resourcing and inclusion Claire McCartney. “The next steps are a roundtable meeting, which the CIPD will be involved in, to decide what will be in the consultations that will mould the policy,” she says. “This will involve discussing with organisations and interested parties how to define flexible working, what will be practical and what the positives might be, as well as exploring any unintended consequences, such as limiting informal flexibility.

“Some things we can already highlight as positives are that this should help people returning from parental leave, encourage carers into the workplace and boost diversity and inclusion. But this relies on organisations leading on this agenda, developing a culture for change and providing training for line managers to implement it. Without this it is unlikely to succeed.”

Jane van Zyl, chief executive of flexible working taskforce member Working Families, “strongly welcomes the commitment”. But she is keen to see the government go further in its instruction to employers, drilling down into the detail. “It’s not enough for the government to simply require employers to state a vacancy is open to flexible working – the types of flexibility available need to be specified as part of the job ad, to ensure employers are thinking through what they need and candidates understand what is on offer.” 

As a fellow member of the flexible working taskforce, the TUC will be heavily involved in the upcoming consultations. And it will be pushing for the government to clamp down on employers that don’t comply. “Within the Queen’s speech the bill talks about ‘encouraging flexible working’. Although we agree with making flexible working the norm, this will need much more than encouragement,” says Natasha Owusu, TUC policy and campaigns support officer.

“Legislation needs to be tightened so employers have to prove exceptional circumstances and don’t simply give one of many reasons for not providing flexible working. We would like to see a legal duty for employers to consider which flexible working opportunities are available in a specific role.”

All employers and HR departments should be taking the legal ramifications of a shift like this seriously, according to Fraser Vandal, solicitor at TLT. “If enacted, these proposals would create a significant culture shift,” he says. “They would inevitably also throw up significant questions for employers, including suitability of office premises, and whether adjustments need to be made to business operating models to take account of employee whereabouts.  

“The devil of the new rules will, of course, be in the detail – especially the level of sanctions a tribunal will be able to impose if employers do not appropriately adhere to them. While unlikely to signal the death of the nine-to-five role, they could have far-reaching implications.”

Beyond the inevitable logistics, there is also work to be done to ensure strong enough employee relations for new agreements to be reached without staff resorting to legal challenges. This is where HR leaders can add real value to the process, according to Neil Morrison, HR director at Severn Trent. “We should be encouraging people to have good dialogues about these topics,” he says. “Hopefully, this legislation will embolden more employees to raise the subject in those organisations where currently it is less welcome. 

“And if you can build a culture of responsibility on both sides, you’re much more likely to come to an agreement about the specifics that really works for all parties.”

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