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Insights and experiences from a government minister and business leaders on new flexible working legislation and how to make it work in practice.
New legislation giving employees the right to request flexible working from the first day in a new job (informally known as Day One Flex) will be in place from next year. It is a sign of huge progress for those of us who have long championed flexible working, and is set to shake up HR practices across the jobs market.
However, it’s important to reflect that the legislation is in some ways just the start of the journey. The changes it ushers in will be made tangible by the way that employers respond. And it’s becoming clear from conversations we’re having that many employers – and particularly those with frontline employees – feel they will need more support to both implement these changes and access their potential benefits.
With this in mind, we hosted a Timewise expert panel discussion to explore the Day One Flex questions that many employers are currently asking. Our speakers were:
Over 200 people attended the webinar, and before we began we sense-checked their views by asking two questions:
The session began with an address from Minister Hollinrake. He began by saying his 30 years of experience as an employer before becoming an MP have led him to believe that having good relationships with employees, as well as open dialogue and a considerate approach to the rest of their lives, is good for workplaces and so for employers.
He also noted that flexible working is a high priority for people who are thinking of returning to the workforce, and that with 8.7 million people of working age currently economically inactive, and business representatives desperate for skills and labour, increasing access to flexible working is a key focus of his department.
As he clarified, the change is a right to request, not a right to insist; and it is important to consider the needs of businesses and customers as well as of individuals. But the expectation is that an extra 2.2 million people will be brought into the scope of the legislation, which is an extremely positive development in today’s tight labour market.
A key aim of the legislation is to promote conversations between employers and employees, and other changes being introduced at the same time will improve this process. For example, making the employer responsible for consulting on the request before rejecting it will create space for a conversation about alternatives to take place.
Similarly, allowing two requests in a year instead of one, reducing the timescale for employers to respond to the request from three to two months, and removing the requirement for employees to set out the potential impact of their request, should all make the process easier to navigate.
Employers do still have the right to refuse a Day One Flex request. But the legislation prioritises quality conversation and consideration and aims to make the process fairer and to support best practice.
Dr Anne Sammon, a partner at Pinsent Masons, has many years of experience working with employers on the existing legislation in this area. She explored what the changes will mean in practice, and what employers should be thinking about.
Moving the right to request from 26 weeks to the first day in a new job is good for employees for many reasons. For example, in practice, candidates who are currently working flexibly may feel nervous about having to wait for 26 weeks into a new job to find out whether they will get the flexibility they want or need, and worry that putting in a request may disadvantage them.
It also brings clarity to employers; for example, with regard to issues around indirect discrimination. For example, not considering a request for flexible working from a working mother could count as indirect discrimination; so this legislation, with its requirement that the request is considered, could avoid issues of that kind.
A big change for employers will be the reduction in the time they can take to consider a request. Employers will need to look at how long their current processes are taking, and see whether this may cause any issues once the period is shortened from three months to two. It is possible for both parties to agree to a longer consideration period, but employers must make sure they are not pressuring employees to agree to one.
It’s also worth remembering that the quality of the reason for refusing a request can make a real difference. If an employee feels that the rationale they are given is fair, they are less likely to appeal. So the hope is that the new legislation will encourage employers to explain carefully why the request doesn’t work for the business, and engage with the issues at the heart of the request. Clarity and transparency will be vital.
Finally, while the legislation allows for two requests in a year, employers should be aiming to have conversations that balance the employee’s needs with those of the business, so they can find a compromise that works for both and avoids repeated requests.
Louise Tait leads an HR team which has spent the last few years working out what flexible working means at Wickes, and how it can be adapted for frontline employees. She believes the changes in legislation are welcome, but noted that challenges remain in terms of how to enable line managers to have better, open and transparent conversations about flexible working outside of a formal process, and to work out how to provide flexible options for all workers, including those on the frontline.
The majority of Wickes’ 8000 employees are in operational warehouse roles or customer-facing ones. The labour market within retail is highly competitive, and this has been exacerbated by the pandemic, with many women and people aged over 50 leaving the sector. Additionally, while 40% of Wickes’ employees are women, and 40% work part-time, these numbers drop significantly as people move through the leadership layers. So flexible working is seen to be a key way to attract, retain and progress talent across the organisation.
Having successfully adopted flexible working for office workers, Wickes have been working with Timewise to explore how to implement it for store leadership teams, and are currently embarking on a new approach within distribution centres. These experiences have provided four key learnings:
Aside from the obvious and proven business case, the pilot has thrown up powerful stories from colleagues who took part about the benefits that being able to work flexibly have had on their personal lives.
You can read more about how Timewise is supporting Wickes on their journey here.
Zurich is known within the flexible sphere for taking a new approach to flexible hiring with transformative results. They support the new legislation around Day One Flex, but have already started having these conversations earlier in the hiring process. Steve Collinson, their UK Chief HR Officer, shared his experiences of increasing access to flexible working and hiring.
In 2017, the company was approached by the Behavioural Insights Team (BIT) via the Cabinet Office, to explore whether a lack of access to specific flexible options was holding women back in their careers and contributing to the gender pay gap. The work involved using nudge psychology to deploy interventions derived from data, and then track the impact of these over time.
Using their own data, and working with psychologists and statisticians, Zurich created a hypothesis that a lack of consistent, explicit access to part-time and job share opportunities meant that fewer women were applying for promotions, or to join the firm, than might otherwise be the case.
BIT responded by asking them to switch their default to advertising all roles (internal and external) on a part-time, job share or full-time with flexibility basis, with the theory being that this would widen the pool of applicants. And the results speak for themselves: since switching their default advertising position:
The changes meant that Zurich reached a talent pool that they hadn’t previously been able to appeal to; they also discovered that people were starting to apply to them because their approach to flexibility gave a positive insight into their culture. Additionally, their gender pay gap has been reduced by 10% and they were placed in Glassdoor’s top 50 places to work in the UK.
Steve concluded by sharing four things to think about:
We ended the session by asking attendees to reflect on what they’d heard and how it would affect their approach going forwards:
Our panel then answered the following questions raised during the session:
Are you able to give us any more detail on when the legislation is likely to take effect?
Minister Hollinrake replied that the legislation should take full effect in 2024. This takes into account the parliamentary process that it needs to go through to become law, and also gives businesses time to prepare.
When you talk about ‘Day One Flex’, what exactly does that mean?
In terms of an official definition, the Minister noted that his department is drafting guidance to set this out clearly, and will be able to share this in the weeks ahead. And Anne agreed that having a specific definition of what Day One Flex means will be absolutely critical.
What would you like to see this legislation deliver for businesses and employees across the UK?
Anne referenced the hope that it will provide employers with the opportunity to move beyond the Day One right and look at building conversations about flexible working into the recruitment process. This will in turn help employers market themselves as flexible and allow candidates to be open and transparent during the interviews.
Steve agreed, explaining that at Zurich managers are encouraged to have conversations about flexible working during the hiring process, so there are no surprises later on. He believes that the legislation will create an expectation that employers will have a more open mindset, and that when they are able to be explicit about being open to a conversation before an employee joins the company, it will benefit everyone.
Louise noted that Wickes’ line managers are also encouraged to have these conversations at the point of hire. She hopes that, going forward, employers will shift their mindset further than the remit of the legislation and instead ask ‘What’s the right thing to do’ in terms of having conversations as early as possible.
Minister Hollinrake concluded by noting that work has changed dramatically from the old 9-5 model, and that the culture of work needs to change accordingly. There is a lot of talent locked up in people who can’t follow a traditional working pattern, and employers should not lock them out of their workplaces.
All members of the panel agreed that this is the future of the world of work, and that we are all on the change journey together.
Next steps for employers
If this panel discussion has raised questions about how your organisation will implement the new legislation, or inspired you to start thinking about offering flexible working even before Day One, we can help. You can find out more about the support we can provide on our website, including a diagnostic review of your readiness for the legislation, training for your HR teams and line managers, and an introduction to our team at Timewise Jobs, who are experts on flexible hiring.
Watch the Timewise Day One Flex webinar below:
Published June 2023