Flexible working: is it set to become new job, day-one right?

Written by: Adam Bernstein
Published on: 23 Nov 2021
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Image: oleg_chumakov / Adobe Stock

Image: oleg_chumakov / Adobe Stock

A private members’ bill that seeks to reform the law on flexible working was recently introduced into Parliament.

Put forward by Tulip Siddiq MP, shadow education minister, the bill has cross-party support and seeks to give employees the right to flexible working from the first day of their employment, unless exceptional circumstances exist. The bill would also require employers offer flexible working in their contracts and advertise roles as such.

However, flexible working isn’t anything new, said Mark Stevens, senior associate at VWV; the right to request it came in during April 2003 and is set into the Flexible Working Regulations 2014. But he added: “There is no right to work flexibly, but rather the right is for an employee to make a request for flexible working.

“The regulations say that employees with at least 26 weeks’ continuous employment can make a request – for any reason. There is nothing to stop an employee making an informal request on day one of their employment.”

In the context of the return to work, Goldman Sachs told staff to return to the workplace in June. NatWest, on the other hand, has a new model that could see just 13 per cent of its staff in the office full-time.

Referring to the bill, Mr Stevens said he was keen to understand the detail behind its wording. He said: ”Would the right extend beyond employees and include workers? What exceptional circumstances are envisaged and who would decide whether they apply.”

Another point, he said, was how, in practice, contracts of employment would offer flexibility?

From a union perspective, Frances O’Grady, general secretary of the Trades Union Congress (TUC), supports the private members’ bill.

She said: “TUC polling shows that four out five workers want some form of flexibility after the pandemic. This proposal would make sure many more people can access this.”

Ms O’Grady reckoned it could be a catalyst for equality by addressing some of the barriers faced by women, disabled workers, carers and older workers. Importantly, the TUC sees an emerging class divide.

She said: “Those who can work from home will be more likely to get flexible working options in the future, compared to those who must be in a workplace.”

The TUC thinks the bill would stop this happening as it would extend flexible working options – including flexitime, term-time working, job sharing, compressed hours and predictable shift patterns – to all workers.

Traction

Will the bill get any traction? It’s unlikely because of a lack of parliamentary time. But the idea isn’t dead and puts pressure on the Government, which was already thinking about the matter.

According to Amanda Steadman, principal knowledge lawyer at BDBF, the Government will consult on the subject with a view to introducing its own legislation. She said: “Although proposals to shake up flexible working are afoot, it’s unlikely that this will mean wholesale homeworking.”

Clearly, no one knows the Government’s exact thinking, but Ms Steadman said: “It’s possible that they will be able to rely on the same or similar grounds that justify a refusal of a flexible working request under the current regime.”

If this is the case, employers won’t find it hard to deny the right, even if granted from day one.

Ms Steadman added: “Where an employee has been working effectively from home for a long period of time, then this may be [even] more difficult.”

When a consultation and Government bill might be forthcoming is anyone’s guess.

Ms Steadman added: “The Queen’s Speech in 2019 outlined plans for a new employment bill. However, the onslaught of the coronavirus pandemic meant the bill was not brought forward in 2020. Two years later, the bill has still not materialised and the 2021 Queen’s Speech made no mention of it.”

Ms O’Grady is blunter: “There’s nothing stopping the Government bringing in a day-one right to flexible working for all workers in all jobs. It was in the Conservative manifesto. It’s time for the Government to publish its long-awaited consultation and get on with changing the law.”

Jamie Mackenzie, director at Sodexo Engage, said he hoped transformation will come. He said: “Shifting to day‑one flexible working would be a huge change for everyone. Ultimately it sets the precedent that flexible working is no longer a nice to have, but a must for all businesses.”

He believes that, if passed, the bill could have huge, positive ramifications for the employment landscape.

Meanwhile, the Chartered Institute of Personnel and Development (CIPD) supports the policy and launched its “Flex from 1st” campaign in February.

It, like Ms Siddiq’s bill, wants employees to have the right to flexible working from day one.

The CIPD’s own research found that 46 per cent of employees said they did not have access to flexible working arrangements. Worse, 44 per cent of employees haven’t worked from home at all since the pandemic began, while 92 per cent said it was because the nature of their job prevented it.

Claire McCartney, senior policy advisor for resourcing and inclusion at the CIPD, was pleased to see movement on the subject in Parliament.

She said: “It’s encouraging to see the increased spotlight on flexible working in Parliament. [But] this needs to focus on enabling flexibility in hours and not just location as there are many whose roles don’t allow them to work remotely.”

Ultimately, employers are going to have to hope that either the Government permits Ms Siddiq’s bill parliamentary time or brings forward workable ideas of its own.

  • This article first appeared in Vet Times Volume 51, Issue 41, Page 22.