The UK Government’s Making Flexible Working the default consultation has attracted a wide range of responses with some business organisations expressing concerns that a day-one right to request flexible working will be burdensome for employers and other groups arguing that it does not go far enough.
The CIPD has strongly highlighted the need for more organisations to offer more flexible working arrangements and to advertise jobs as flexible wherever possible. Our Flex from 1st campaign calls on employers and government to make the right to request flexible working available from day one of employment.
As we make clear in our consultation response, making the right to request flexible working available from day one will ensure more employers adopt what is already good practice for a third of businesses. Along with some other tweaks to the legislation, this would mark a significant step forward.
It would be great to go further and be able to legislate to make flexible work available as a default right for everyone, but unfortunately, this is just not workable or enforceable.
What would a day one legal right to flexible working look like?
Proponents of a right to flexible working, as opposed to a right to request flexible working, want a legal duty for employers to consider which flexible working arrangements are available in a role and to publish them in job adverts, with the successful applicant having a day-one right to adopt the flexible working arrangements advertised. Under these proposals, if an employer considered that no flexible working arrangements are appropriate for the new role, they would have to set out that no form of flexible working is suitable in the job advert and why.
All roles would be regarded as suitable for flexible working unless it could be shown by the employer that the unavailability of flexible working was a proportionate means of achieving a legitimate aim, the test set out in the Equality Act 2010 for employers to justify discrimination in certain contexts. The suggestion is that these new employer obligations would be overseen by the Equality and Human Rights Commission (EHRC).
Why this would not be workable in practice
The problem is that it is very difficult to see how this new right to flexible working could be meaningfully enforced for a number of reasons. Firstly, under the new duty for employers to advertise jobs as flexible, the definition of what is a flexible job is problematic, as this will vary depending on whether this is seen from the viewpoint of the employer or the individual.
If it is just the organisation’s definition of flexibility that matters, a cynical employer or one wanting to avoid additional bureaucracy would easily be able to work around the new duty. They could do this by advertising jobs as flexible in a way that ticks the box as being flexible on paper as far as the new duty is concerned but which is not flexible from the perspective of most job seekers.
For example, an employer might advertise that working from home regularly is possible in a role one day a month, meeting the new duty of advertising a job as flexible but failing to meet the needs of most people wanting to work from home who would want to do so far more regularly. To take another example, what if an employer advertised a job as either a full-time role or available on a zero-hours basis? In this scenario, the employer has again met its duty to advertise the job as flexible; the box cynically ticked in terms of the new duty, but without providing flexibility that will suit most potential candidates.
The proposed new duty also does not take into account the fact that there is a myriad of possible flexibilities. At one end of the spectrum, an employee might wish to end their working day 30 minutes early on a Friday and start 30 minutes early in place. At the other end of the spectrum, an employee might wish to work remotely from home from the other end of the country or even from another country altogether. It would be very difficult for an employer seeking to comply with the proposed new duty in good faith to ever say that no flexibility whatsoever is possible, whereas an advertisement saying that flexibility of a certain type is possible may encourage unrealistic expectations and cannot address all possible flexibilities.
Furthermore, employers with a poor understanding of the different types of flexible working may well advertise only very limited flexible working options which could have the opposite effect of putting some people off applying for roles.
Ultimately, meaningful flexible working will always come down to a discussion about what would work for both the individual and employer in practice rather than what might be theoretically available in broad terms.
Legal grey areas/ enforcement problems
Another problem is that the proposed duty would be for employers to ‘consider’ which flexible working arrangements are available, as this in itself could lead to legal arguments given the subjective nature of the term. Combine this with the difficulty over defining what is a flexible job, and you have legal grey areas that would add to the cost and complexity of flexible working, undermining the whole point of this new right. But the challenges over introducing this proposal don’t stop there.
As stated above, under one proposal for enforcing this new duty, employers would also have the option of just stating that flexible working is not available for a role being advertised if this could be justified as a proportionate means of achieving a legitimate aim under the Equality Act 2010.
Challenging this would require the EHRC to investigate, which would require significant time and resources to understand whether the employer was justified in not considering a job as available for flexible working. Assessing whether an employer could show that the unavailability of flexible working was a proportionate means of achieving a legitimate aim, would need to be done on a case-by-case basis to understand the context and rationale for an organisation not advertising a job as flexible.
This leads us to the final major and interrelated problem, which is that the EHRC would require significantly more resources if it was to be able to meaningfully enforce a new requirement for employers to advertise jobs as flexible on top of its existing responsibilities. After all, to be effective, this would involve a system for monitoring hundreds of thousands of jobs adverts a year, as well as investigating potential breaches and taking enforcement action where appropriate.
Consequently, while arguing for a right to flexible working is well-intentioned it is not a practical means of boosting the uptake of flexible working.
Extending the right to request flexible working to become a day-one right may not be a game-changer in itself but it is a positive step forward. CIPD research suggests that the right to request flexible working has become more effective as a result of Covid-19, with two in five employers saying that they will be more likely to grant requests for flexible working after the pandemic than they were before. A day-one right to request will further enhance the impact of this legislation.
Further progress to improve access to different forms of flexible working arrangements across the labour market will also be driven by increasing demand from workers for flexible working and recognition among employers that they will struggle to recruit and retain staff if they don’t respond.
This growing business case for flexible working, the provision of good quality advice, guidance and training for employers, coupled with an enhanced right to request flexible working, can together, catalyse the creation of more flexible and inclusive workplaces. Legislation can only ever be part of the solution to improving working practices and poorly designed can prove more of a burden than a benefit to anyone.
You can also read Claire McCartney’s CIPD Voice article on the topic here.
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