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Will flexible working become law?

15 Jul 2021 By Caitlin Powell

With coronavirus restrictions coming to an end, businesses are already at a significant turning point. But another could be just around the corner 

For many businesses, the last 16 months have been one big flexible working experiment that nobody asked for. But, at the time of going to print, the chance that it could be over in a matter of days was still firmly on the horizon. After a false start in June, England is, for the time being, set to lift restrictions on 19 July, with the devolved nations expected to outline their own plans in due course. For employers, this means the end of the work from home guidance, the end of restrictions on how businesses can operate and the end of mandatory rules on face coverings. “It will no longer be necessary for the government to instruct people to work from home, so employers will be able to start planning a safe return to the workplace,” said Prime Minister Boris Johnson earlier this month.

Johnson is not alone in wanting this to mark a return to the workplace. In an open letter to the government, a number of top executives, including the bosses of Heathrow and Gatwick airports, Capita, John Lewis and BT, said it was “critical that the government gives clear direction on the return to the office”. The recovery of the economy counted on commuters returning to the country’s city centres, they said.

But, alongside the push for getting back to ‘normal’, there has been another campaign to enshrine the flexibility that many have become accustomed to as a legal right. A flexible working bill introduced by Labour MP Tulip Siddiq would, if passed, require flexible working arrangements to be built into employment contracts from day one (except in exceptional circumstances), and force firms to advertise the flexible arrangements available. This would be a departure from current rules, which only give employees with 26 weeks of service the right to request flexible working, which businesses are under no obligation to grant.

For those who were able to work from home during the pandemic, the experience has been “life changing”, said Siddiq. But lockdown hasn’t been the boon for flexible working that most assume. “There’s a misperception that the country has enjoyed a year of flexible working. The reality is that the majority of workers, particularly those on lower incomes, have not felt the benefits of home working and all other forms of flexibility have declined since last March,” Siddiq said.

This is backed up by the evidence. Analysis by the CIPD of data from the Office for National Statistics found that between April and June 2020 and October and December 2020, the use of part-time working fell from 28.3 per cent to 27.6 per cent, and take-up of flexi-time dropped one percentage point to 12.6 per cent. Similarly, a study by Pregnant Then Screwed showed that in the first year of the pandemic, more than seven in 10 (71 per cent) of flexible working requests were rejected, up from just over half (53 per cent) the year before.

So is a flexible working bill the answer? Claire McCartney, senior policy adviser for resourcing and inclusion at the CIPD, says that in order to work, the bill “needs to focus on enabling flexibility in hours and not just location, because there are many whose roles don’t allow them to work remotely”.

A bill on its own also wouldn’t end the stigma attached to flexible working, says Gemma Dale, co-founder of the Work Consultancy. It is up to HR professionals to talk to their leadership teams about flexible and hybrid working strategies, she says, advising employers to act now. “Why wait for the law to change? This is the moment to be on the front foot and get your strategy nailed,” she says.

And Emma Stewart, development director at Timewise, also warns of the risk of “flex washing” if employers are suddenly forced to offer flexible working from day one. It would be easy, she points out, for firms to say that a role can be done flexibly if legally required to, but not actually make the changes needed to make that flexibility a reality. To combat this, flexible working needs to become part of employers’ inclusion and diversity strategies. “HR professionals can provide support and training to managers”, says Stewart. “This is no longer just a nice thing to have – this is a necessity,” she adds.

Then there’s the way flexible policies are implemented. Gemma Hanham, former head of people at CyberSmart, suggests the bill will be effective if businesses can avoid overcomplicating their processes with risk-averse, bureaucratic policies. To best adapt the workplace for a flexible future, Hanham advises that managers will need to adjust to assessing performance through outcomes and contribution. “Coaching line managers to value output over input is going to be a huge undertaking and businesses will likely need to revisit their current performance management and progression framework.”

The CIPD’s #FlexFrom1st campaign is calling for flexible working to be made a day-one right. Find out more at cipd.co.uk/flexfrom1st.

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