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The government appears to have pulled a U-turn on making flexible working a right from your first day in a job. Here are the rules as they currently stand.
by: Evie Breese and Laura Whateley
More of the UK’s largest employers are talking about a permanent move to more flexible working and “hybrid” offices after the pandemic, but will it really be available to all?
The chief executive of HSBC recently called flexible working “the new reality of life”, allowing all of the bank’s call centre staff will work from home in future, in a permanent money-saving move.
Job search engine Adzuna has seen a surge in demand from job seekers searching for flexible roles, up five fold since before the pandemic.
Andrew Hunter, co-founder of job search engine Adzuna, said there has been “a notable shift in mindset… with many people flexing their working hours to fit around caring needs or their preferred working patterns during the lockdowns.”
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He believes that to retain workers and attract new talent, employers will have to adjust to continue flexibility for those who want or need it.
But only eight per cent of all job postings on Adzuna’s platform specify flexible working patterns, just over 74,000 out of a current 914,220 UK vacancies.
Will all employers embrace the same definition of flexible working? And will it really make for a better work-life balance?
During the pandemic the term became associated with not always being in the office, working remotely or from home some of the time. This may be a significant part of it, but flexible working also encompasses, according to employment advice service Acas, reducing your hours (for example to a four day week or part-time), changing your start or finish time, or having flexibility around these, often known as flexitime.
It could also mean compressed hours, working fewer but longer days in the week,  or sharing your job with someone else. You might do different hours on specific days or shifts, for example, working only during school term time.
Are you legally entitled to flexible working?
Flexible working is not a legal right, but the government had been set to give employees the right to request it from day one on the job.
Saying that it wanted to modernise the way Britons work by allowing employees to balance their work and home life, the flexible arrangements were designed to include working from home, job sharing, part time, compressed or staggered hours and flexitime.
However these plans have reportedly been postponed, again, further pushing back a pledge made in the Conservative election manifesto three years ago. The commitment was expected to appear in the long-awaited Employment Bill and announced during the Queen’s Speech in May.
But when asked if the bill was likely to be in the speech, a government official told the Financial Times: “No. Not everything we want to do can we find space for in one season, we can’t do everything we want to do immediately.”
As it stands, current legislation states that employees had to have been in their roles for at least 26 weeks before they had a right to request flexible working. The new rules give them the right to request from their first day.
After you have made your request, a meeting should be set up to discuss it, and you should be given a decision within three months of asking for it.
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However, bosses will not be obligated to accept requests for flexible working and will be able to reject them if they “have sound business reasons to do so”.
With one in three flexible working requests turned down, according to research conducted by the TUC before the pandemic, the union says that the proposals don’t go far enough to put the needs of employers above the demands of bosses.
Morgan Bestwick, policy and partnerships officer for the Joseph Rowntree Foundation, has said that flexible working should be normalised “from the factory floor to the boardroom, with opportunities for progression available to all, and where a right to request becomes a true right available to all workers.”
“To make this a reality, government should change the law so that workers have a day one right to flexible working, not just the right to request,“ he continued.
What to do if your request for flexible working is denied
There are eight grounds on which an employer can refuse a flexible working request, which include things like it being too costly, that they can’t re-organise work among existing staff, or that there’s not enough to do during the hours you propose to work.
“Although the regulations do allow an employee to apply for flexible working, there is no automatic right and the grounds for refusal are wide” says Richard Thomas from Capital Law’s employment law team.
“Most businesses would be able to reasonably refuse a request under one of the grounds that suit their business.”
But, if your company has operated successfully during the pandemic, with everyone working at home, or with parents shifting their hours around to home-school children, it might be harder to argue that your post-pandemic request is detrimental.
If your boss turns down your request for flexible working, they should give a good explanation of why they can’t accommodate your request.
And if your request is related to tasks such as childcare, Thomas says “An employer who does decline such a request may also be at risk of a claim for sex discrimination.”
In a recent case, an Employment Tribunal found that refusing a female employee’s request for flexible working – which would have enabled her to collect her daughter from nursery – was an act of indirect sex discrimination.
If you would like to appeal the decision, there should be a process to do so with your employer. You may wish to highlight the problems with the reason your boss has given to reject the request, and why you feel this is unfair, discriminatory, or shortsighted.
In some instances, you may not be able to agree on a flexible working pattern, but you can refer your request to the Advisory, Conciliation and Arbitration Service (Acas) who can help with mediation or their arbitration service.
Beware the ‘fake’ flexible working
Already, campaigners such as Anna Whitehouse, who is fighting for more family-friendly working practices with her Flex Appeal, are warning of “fake flex”, or “flex wash”.
That is employers advertising the fact that staff can work wherever they like for a couple of days a week, but not actually introducing any measures that create more accommodating hours or ways of doing the job.
Recent figures from the Office of National Statistics show that people working from home during lockdown actually spent more hours at work, were less likely to be promoted and less likely to take time off sick.
Employers must avoid measures that give the illusion of flexible working, while still requiring staff to consistently put in long hours and be responsive at irregular times, concludes a new report by the Global Institute for Women’s Leadership at King’s College London, and employee research agency Karian and Box.
They surveyed 254 organisations and found that 90 per cent had increased support for home-working since the start of the pandemic, and 97 per cent are planning to adopt a hybrid-working model in some form. But more targeted flexible working measures were much less common.
Only 36 per cent of employers were actively redesigning job roles for home or hybrid working, only half had provided more support for part-time working, and 63 per cent had increased support for parents and carers.
Genuinely flexible work is not just about where you lay your laptop, but less rigidity around how and when you work, too. And as the pandemic has emphasised the challenge of juggling childcare or looking after those who are ill while working full-time, more employees are seeking some wriggle room.
Can parents expect flexible working?
If your employer denies you flexible working you can request unpaid parental leave. You are entitled to take a total of 18 weeks for each child up until they are 18, with no more than four weeks in any given year.
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But you must have been employed for at least 12 months, and give 21 days notice. “Employees should check their staff handbooks for more details and processes as the employer may have offered more than the statutory rights afforded,” says Holden.
Portugal recently introduced new rules allowing staff with children to work remotely. Until their child turns eight, parents will be allowed to work at home indefinitely without seeking prior approval from their employer.
How do you ask for flexible working?
You need to apply for flexible working in writing, and state whether you’ve made an application before. You’re only allowed to apply once a year. In the letter, lay out the change you want, when you’d like the change to start, how you think that change will affect your work or the business and, points out Acas, make sure you specify if your request is related to anything covered by the Equality Act 2010. For example, you are disabled and flexible working is part of an employer making a reasonable adjustment for that.
Like negotiating a pay rise, your request is likely to be better received if you lay out why flexible working would be a good thing for your business, your colleagues, or your productivity.
The charity Working Families has a template letter you can use.
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