In this article, GMLC employment campaign volunteer lead Avaia Nightingale Williams considers the Employment Relations (Flexible Working) Bill and analyses the consequences of inadequate legislation, as well as suggesting how the law could be strengthened.
Introduction to Flexible Working
Flexible working refers to the ability of an employee to apply for flexible working, e.g. to change their working pattern, hours of work and location. This includes remote work, flexible hours, and hybrid working arrangements. This option is essential for those facing challenges such as managing childcare, disabilities, and health issues.
The right to flexible working was first established in 2003 by the UK’s Labour government, giving parents of young children or disabled children the right to request it. This right was later extended in 2007 and 2009 to include carers of adults and all parents of children under 17.
Currently, the right to request flexible working is governed by The Flexible Working Regulations 2014. Under the 2014 Regulations, the right to request is governed by the following:
- The employee does not need to be a parent or carer.
- The employee must have been working for their current employer continuously for a minimum of 26-weeks.
- The employee is entitled to make only a single request in any 12-month period.
- The employer must decide the outcome within 3-months of the request being submitted.
- The employer can reject requests using eight ‘business reasons’ such as high costs, unfillable gaps, and harm to performance or quality.
The 2014 Regulations have limited impact, with long wait times and limitations leaving millions of employees powerless. Refusal is easy with eight broad business reasons given as justification.
The current Bill, introduced in June 2022, would make five key changes:
- Eliminate the qualification period of 26 weeks, making flexible working available from day one.
- The employer would have to consult with employee before rejection, discussing outcomes and alternatives to facilitate flexible working.
- Allow for two requests per 12-month period, doubling the current number.
- The employer would have to respond to the request within two months, rather than three.
- Remove the requirement for employees to explain the impact that flexible working would have on the business, addressing current inequalities that require such representations.
These changes are a much-needed step in the right direction to ensure that flexible working is de-stigmatised. Introducing the Bill, Bolton South East MP Yasmin Qureshi stated that:
“This is an important issue, because flexibility in the workplace is no longer just a perk or a “nice to have”. For many it is a lifeline because it offers a much-needed pathway into the labour market and allows those with caring responsibilities to save on childcare costs by “flexing” their working patterns.”
Why is Flexible Working Important?
Research shows that flexible working leads to increased productivity, better work quality, employee retention, reduced absences, and increased employee loyalty. Most importantly, flexible working is critical to promoting equality and reducing discrimination based on gender, disability, and age.
Gender Inequality
Fawcett research found that the gender pay gap is influenced by four key factors, three of which are directly impacted by flexible working conditions, including caring responsibilities, the job market, and maternity discrimination. Women are often unable to take high-skilled or senior positions due to childcare responsibilities or have to work reduced hours or leave their careers early due to pregnancy. Currently, flexible working is the exception in the job market, making it difficult for women who need it to find work. As a result, on average, women earn 8.3% less than men over their careers according to the ONS. However, the pay gap was at 9% prior to the pandemic and reduced to 7.7% during the pandemic when flexible working was at an all-time high. While there is no clear evidence that this was due to the increase in flexible working, it is likely that many women benefited from it.
Disability Inequality
Disabled people face significant barriers to entering and staying in the workforce, including access to reasonable adjustments, many of which involve flexible working arrangements. Such adjustments have been shown to level the playing field and improve equal access to work opportunities for disabled workers. Working from home is one of the most requested and refused reasonable adjustments for disabled people. However, the pandemic has changed this position. A TUC report on disabled workers’ access to flexible working revealed the following data:
- 63% of disabled people working from home reported greater control over their hours.
- 40% reported reduced tiredness and fatigue.
- Over a quarter reported significant improvement in their mental health.
Employers often raise concerns about the impact of working from home on worker productivity, management, and workplace disruption, but the TUC report shows that disabled workers do not want to work from home full-time, with 80% preferring a hybrid approach, especially after experiencing it during the pandemic.
Age Inequality
The TUC report on the government consultation found that one in eight older workers are forced out of work due to ill health, and many others are unable to continue working due to caring responsibilities. A recent ONS study found that of those aged 50-70 who had recently left work and would consider returning, the ability to work from home and have flexible hours was the most important factor, with 70% of respondents citing it as the biggest factor. With the potential increase in the state pension age to 68, it is likely that one in six workers will have caring responsibilities by 2040. Without flexible working, older workers are at a significant disadvantage, and the potential for increases in injustice as the state pension age moves further away.
In conclusion, flexible working is essential for promoting equality and reducing discrimination based on gender, disability, and age. According to the TUC:
“Making flexible working available in all but the most exceptional of circumstances is essential for promoting greater gender equality.”
Positive Impact or Adverse Consequences?
The importance of legislative change in relation to flexible working cannot be overemphasised. At present, there are 2.2 million employees who are not eligible for flexible working arrangements due to a 26-week qualification period. The new Bill aims to remove this barrier, allowing these employees to have access to flexible working. Furthermore, the Bill aims to reduce the stress that employees face while waiting for a response from their employer by reducing the time frame within which employers have to respond to requests.
Right to Request
The Bill falls short in one crucial aspect. Currently, the right to request flexible working is just that – a right to request. The Post Implementation Review of the Regulations confirms that there has been “little change” in the eight years since the introduction of this right. This is because, if the right remains one to request only, then the procedure for making flexible working requests can be simplified and barriers removed, but this will not necessarily lead to an increase in the number of employees who are granted flexible working arrangements.
The Trades Union Congress (TUC), the largest union organisation in the UK, agrees, stating in their 2022 report on the government consultation on flexible working that a request-based system does not work and making the right to request flexible working a day-one right will not lead to increased access.
The biggest issue with the new Bill is that it still gives employers the discretion to refuse requests. The eight business reasons that can be used to refuse a request are so broad that they can effectively deny almost any flexible working request. The TUC report showed that 87% of respondents felt that the reasons should be amended due to their broad application. Even though the government’s own consultation on flexible working showed that only 21% of respondents felt that these reasons remained valid, the government has no intention of changing them.
Flexible Working Remains the Exception
The request-only position means that flexible working remains the exception and leads to a workplace culture of stigma and discrimination against those who work flexibly and those who seek to. The TUC confirmed that making flexible working requests is seen negatively and leads to direct discrimination. Because the onus to request is solely on the employee, this can lead to a perception (from both employers and employees) that a worker requesting flexible working is difficult and uncommitted to the role.
Allowing more flexible working requests without stronger protections may increase discrimination against employees. Evidence shows that those who make flexible working requests are often treated negatively. The current lack of protections and the government’s plan to cut employee protections further, including health and safety law, equal pay, and trade union rights, will result in greater harm to employees. Employers will be able to discriminate against these employees and these employees have little recourse against these actions.
What is not in the Bill and why?
At only 2 pages in length, the Bill is lacking in substance. But why?
Despite the government’s commitment in 2019 to support flexible working, the current Bill was introduced by a Labour MP, Yasmin Qureshi, as a Private Members Ballot Bill (meaning there was no government support and the only reason the Bill was read initially was that it was selected from a random ballot of other bills).
The government now passively support the Bill, but they have done very little in the way of ensuring solid change. It could be argued that they are only supporting the Bill because it does not massively strengthen protections for workers. After all, this is the same government that the government’s has plans to decimate the employee protection landscape with ‘red tape’-cutting proposals to health & safety law, equal pay and same-sex pension protection repeals, and a regressive obsession with destroying trade union rights.
The government has shown a consistently negative attitude towards workers’ rights, consistently favouring employers and aiming to strip back protections for employees. As the TUC stated:
“If the government truly wants to make flexible working the default, they must do more than tinker round the edges of failed flexible working legislation.”
Recommendations for Stronger Legislation
The Flexible Working Bill does not adequately protect employees who wish to work flexibly. To strengthen flexible working, the government can take several steps.
Firstly, a legal obligation could be created for employers to consider the available flexible working arrangements for each role and to publicly advertise these options along with job advertisements. Additionally, employees could have the right to take up these arrangements from the start without having to make a formal request.
Secondly, all jobs, with few exceptions, could have a legal assumption of being suitable for flexible working, unless the employer can demonstrate that it would be disproportionate and not serve a legitimate purpose. This can be achieved by creating a right to flexible working, rather than just a right to request.
Thirdly, the eight existing business reasons for refusal could easily be replaced with a proportionality test, similar to that in the Equality Act 2010, rather than relying on the arbitrary and vague concept of ‘business needs’.
Fourthly, the number of requests that can be made should not be limited by any arbitrary requirements, like frequency. Life is unpredictable and things can change quickly. Furthermore, the response time for requests could be reduced to a more reasonable period, such as the TUC’s recommendation of one month, to prevent employers from dragging out the decision-making process.
Finally, to prevent any negative consequences of increased flexible working, a right to disconnect could be established to ensure that employees are not expected to work outside their hours as a trade-off for the flexibility they receive.
Conclusion
It is clear to see that the Bill is good-natured, and it is a step in the right direction. However, it does very little to actively support flexible working, and in a context where workers’ rights are under attack and enforcement of rights is very poor, it seems unlikely that this will improve the situation for employees who wish to access flexible working practices.
While the government is passively supporting the Flexible Working Bill on one hand, they continue to destroy workers’ rights and disempower trade unions on the other. We must continue to fight for stronger worker protections across the board and ensure that flexible working is given the attention it requires and deserves to enable workers who need flexibility to access it.
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Avaia is currently undertaking the Barrister Training Course in Manchester and was formerly a Trade Union Representative at Citizens Advice Manchester. If you are interested in working with GMLC on protecting and strengthening employment rights, either as a campaigner, practitioner or on an organisational level, you can email us at development@gmlaw.org.uk.
Photo credit: Pexels, Pixabay, 2016.
