The employment bill must happen – and should require employers to consider making jobs flexible instead of just giving employees the right to request.
By Emma Stewart, Development Director, Timewise
The government consultation into ‘Making flexible working the default’, launched in September 2021, was welcomed by individuals and groups across the spectrum. Unfortunately, however, the legislation that would have brought it to life has been postponed. The employment bill in which it would have been included did not appear in the 2022 Queen’s Speech, and at the time of writing, it’s not clear when time will be found for it.
Clearly, this is disappointing for all of us who have an interest in making workplaces fairer and more flexible. As Ann Francke, head of the CMI, noted in the Financial Times, “Many parts of the bill have risen to even greater prominence in the pandemic, making the rights to a modern workplace more important for marginalised groups such as women, and those from poorer backgrounds and ethnic minorities. This is exactly the sort of legislation we need to build back better and level up the UK.”
We’ll be watching with interest to see when this legislation is tabled, and will continue to make our views clear on why it’s so critical, not least through our membership of the Flexible Working Taskforce. In the meantime, here’s a reminder of the government’s proposals – and how we felt they could be improved.
The proposals outlined in the BEIS consultation were certainly a step in the right direction. Amongst the changes on the table was to giving employees the right to ask for a flexible role from the moment they join an organisation – rather than waiting 26 weeks, as is currently the case.
But as we stated in our formal response to the consultation, our view here at Timewise is that this doesn’t go far enough. Why? Because it still puts all the onus on the employee to ask.
Rightly or wrongly, many candidates still fear that bringing up the question of flexible working might damage their chances, and so may decide not to ask. And given that, according to the TUC, 1 in 3 flexible working requests are turned down, they’re right to be sceptical. Additionally, our recent candidate research showed that 2 in 5 people who are seeking to work flexibly simply won’t apply if the advert doesn’t mention it.
Yet unfortunately, even after the huge, pandemic-driven shift in attitudes to remote and hybrid working, only 1 in 4 jobs are currently advertised as flexible.This narrows the options to the point of near invisibility, particularly for those who can’t work without a degree of flexibility, whether for caring, health or other reasons. Without a clear steer from the employer, many candidates won’t risk making a request, in case the answer is no. And they’re even less likely to risk leaving the job they’re in without being confident that they can get similar flex in their next one.
Instead, then, we believe that the legislation should take things a step further. We think employers should be required to consider whether a job can be made flexible, and if they feel it can’t, to explain why not. And critically, if it can be done flexibly, they should be required to state the flexibility on offer up front in the recruitment process.
At the time the consultation was launched, the government stated that it wasn’t the right time to take this extra step, noting that: “A number of respondents to the July 2019 consultation also suggested that requiring an employer to say whether a job is open to flexible working in the advert would drive the wrong response from those we were most looking to influence – those employers not culturally ready would simply default to ‘no’.”
But the world has changed so dramatically since 2019 that this felt to us, and still feels, like an overcautious approach. Organisations of all shapes and sizes are getting to grips with flexible working; even the NHS, Europe’s biggest employer, with some of the most complex working patterns around, now expects employing organisations to “consider how they promote the right to request flexibility from day one and the availability of flexible working options.” To put it bluntly, if not now, when?
It’s important to say that we are not suggesting that the government should just bring in the requirement to consider whether a job can be made flexible, and leave employers to get on with it. We appreciate that not all employers are ready to take that step; we have also previously noted the risk of ‘flex-washing’; that is, just saying a job is flexible without considering it properly or designing it to work that way.
Instead, in our response to the consultation, we called on the government to provide a package of support for employers, to help them create and implement flexible jobs and behaviours, along with any new legislation. This would include training managers in how to design flexible jobs and manage flexible teams. And in some sectors, in which flexibility is more complex to achieve, it would involve supporting them to test and pilot different approaches.
If this support were available, employers would be able to get to a position where considering whether a job can be made flexible, and what options are the most suitable, happens before the recruitment process. Where hiring managers proactively think this through. And where doing so is seen as an opportunity to attract the best talent, rather than a problem to be solved.
Whereas without investing in this approach, any right to request flexible working from day 1 – or to be automatically entitled to it, as some have called for – will be hugely risky, as organisations won’t be equipped to navigate the process.
Of course, it’s not just a question of training and testing; culture and behaviours also have a huge part to play. We know that organisations who already do this well develop company cultures in which flexible working is a strategy, not a policy, and is championed and celebrated by leaders.
To be frank, they’d be daft not to; the current recruitment crisis is creating a battle for talent, in which employers who can demonstrate that they value their employees’ home lives as much as their work lives are likely to have the edge. So it really is in everyone’s interests to get the right behaviours in place.
If you’re on board with the concept, but not sure what steps to take, we can help; we offer a range of consultancy services, including training line managers in flexible job design and supporting leaders to develop a flexible vision, principles and culture. In the meantime, we’ll be waiting expectantly for these proposals to make it back into the government’s legislative programme.
Published May 2022
