Flexible working as a day one right
31 Jan 2024
From 6 April, new flexible working legislation ‘The Employment Relations (flexible working) Act’ is due to give employees the right to request flexible working from day one of their employment. However, both employers and employees are confused about what this means for them. I recently delivered a webinar for members of our HR Network to explain it in more detail. Here is a summary of some of the key points.
Current legislation allows employees to make one flexible working request per year, following 26 weeks of continuous employment. As things stand, employees need to make a written request that includes an explanation of the effect, if any, of the change on the employer and how that effect might be dealt with. Employers have several grounds on which they can reject a request, following a process that can take up to three months.
In December, parliament agreed that no conditions as to duration of employment need to be satisfied by an employee in order to be entitled to make a flexible working application on or after 6 April 2024, effectively making it a day one right. The wider legislation also removes the responsibility on employees to identify effects and mitigations. Although the grounds for rejecting a request remain the same, the process will need to be completed within a two-month period and two applications can be made within any 12-month period. Employers are wondering if they will be inundated with new statutory requests for flexible working as a result.
Of course, this relates only to statutory flexible working. That means changes to the contract of employment (eg contracted hours, times and place of work), rather than informal agreements or wider issues around flexible working. It is also important to note that employees may have protections under the Equality Act that mean that they are entitled to reasonable adjustments. Draft Acas guidance outlines their code of practice to ensure that all statutory flexible working applications are given due consideration.
The latest Flexible Jobs Index from Timewise shows that 31% of jobs offer flex, 60% of employees are working flex and 87% of people want flex. This is borne out in other evidence. 2021 CIPD survey data found that 9.3% of workers – equivalent to 3 million people – said they would prefer to work shorter hours and accept the cut in pay that usually comes with this.
While home and hybrid working has increased dramatically over recent years, there is still huge unmet demand for flexibility among the current and potential workforce. CIPD research revealed that 75% of employees agree that it is important that people who can’t work from home can work flexibly in other ways. Through our work on Fair Flex for All, we are seeing forward-thinking employers in frontline, site-based sectors successfully implementing flexible working beyond hybrid. For example, following Timewise supported trials with store managerial staff, Wickes has recently announced that they are rolling out their flexible working model for every one of its retail store employees.
Our research shows that increased flexible working, that meets the needs of employees, can result in a range of benefits to them and their employer. IES has set out a range of cost benefit scenarios to demonstrate that just a small impact on measures, such as retention and sickness absence, can deliver strong returns on investments in flex. As well as recruitment, retention, productivity and performance; equality, diversity and inclusion will be important considerations for employers formulating their strategic response.
It is important to note that, while flexible working definitions often include part-time working, term-time only working, home working, etc. it is only when these ways of working meet the needs of an employee that benefits are likely to accrue. This is often missed in assessments, which often focus on the number of employees working part-time etc., rather than whether this is an employee preference. Indeed, the CIPD has found that some workers with atypical contracts eg temporary and part-time working, would rather have a permanent job or work more regular hours.
Our recent work with Restart providers suggests that employers are receptive to support that helps them consider new ways of creating day one flexibility. We found examples of Restart providers (following upskilling from our friends at Timewise) supporting employers to offer different ways of working (eg shorter shifts and more accessible start and finish times) that fitted better with the lifestyles of potential recruits. Some of these employers would subsequently benefit from a higher number of applicants who were more likely to stay in post, without having to make a statutory request for flexible working.
A significant consideration for employers is how their recruiting managers should discuss flexible working with applicants, and how they respond to formal day one requests. According to a recent Acas commissioned YouGov poll, 70% of employees are unaware of the change. While this means that a flood of new applications is unlikely, it also means that many managers will not know how to handle those they do receive. Line managers will need support to access the knowledge, skills and tools they need to support new employees through this process.
The reality for many employers is that this legislation will change little. Good employers already respond supportively to requests for flexible working and, while they may not feel the need to make contractual changes, line managers often come to informal arrangements with new and existing employees. However, this reactive approach risks inequity in how flexible working is rolled out and impacts on the longer-term prospects of employees. It also relies heavily on line managers and their individual relationships with employees. Where employers create a cultural shift to ensure that everybody who wants to work more flexibly (or less) is able to do so, and subsequently removing the need for an application process, is where we are seeing real change and benefits for individuals and employers alike.
If you want to discuss how IES can support the effective development and management of flexible working in your organisation, please contact Astrid Allen.
Any views expressed are those of the author and not necessarily those of the Institute as a whole.