· 4 min read · Features

What’s holding back a flexible working Bill for employees?

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A private member’s bill that seeks to reform the law on flexible working was introduced into Parliament in June. Put forward by Tulip Siddiq, 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.

It would also require employers to offer flexible working in their contracts and advertise roles as such. But flexible working isn’t anything new.

The right to request it came in April 2003 and is set into the Flexible Working Regulations 2014. Mark Stevens, senior associate at VWV, says this is worlds apart from the new Bill.

He says: “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.”

But, of course, as Stevens says: “There is nothing to stop an employee making an informal request on day one of their employment.”

Post-lockdown, employers are opting for different approaches. Goldman Sachs told staff to return to the workplace in June, whereas NatWest has a new model that could see just 13% of its staff in the office full time.

Referring to the Bill, Stevens is keen to understand the detail behind its wording. He says: “Would the right extend beyond employees and include workers? What exceptional circumstances are envisaged and who would decide whether they apply?”

There is also the matter of how, in practice, contracts of employment would offer flexibility.

From a union perspective, Frances O’Grady, general secretary of the TUC, supports Siddiq’s bill.

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

O’Grady reckons it could be a catalyst for equality by addressing some of the barriers faced by women, disabled workers, carers and older workers.

However, the TUC sees a potential emerging class divide if flexible working was not granted to all. She says: “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.

So, is it likely to gain traction? At the moment, there is a real issue with a lack of parliamentary time as Whitehall still battles against the virus.

But the idea is far from dead, and the Bill’s introduction puts extra pressure on a government that was already being lobbied to consider 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 says: “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 as Steadman says: “It’s possible 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 still won’t find it hard to deny the right, even if granted from day one.

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

When a further reading of the Bill might be forthcoming is anyone’s guess. Changes to flexible work had also been proposed prior to the pandemic in 2019 as part of a new Employment Bill, as Steadman highlights.

“However, the onslaught of the coronavirus pandemic meant that the Bill was not brought forward in 2020. Two years later, the Bill has still not materialised, and the 2021 Queen’s Speech also made no mention of it.”

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 their longawaited consultation and get on with changing the law.”

Jamie Mackenzie, director at Sodexo Engage, hopes that employment transformation is on the horizon. He says: “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.

The CIPD has long been vocal about the right to flexible working, having launched its Flex from 1st campaign in February.

Its research found that 46% of employees said that they do not have access to flexible working arrangements.

Worse, 44% of employees haven’t worked from home at all since the pandemic began, while 92% said it was because the nature of their job prevented it.

Claire McCartney, senior policy adviser for resourcing and inclusion at the CIPD, is pleased that there is finally movement on the subject in Parliament.

She says: “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.”

Organisations like Peabody, a London-based housing association, are also keen on flexible working.

Andrea Gordon, director of people, supports the CIPD’s stance and has backed the concept into its job offers: “We think it is really important. We’ve already made flexible working a day-one right.”

In fact, flexible working was a fundamental pillar in Peabody’s new group strategy, developed using focus groups attended by a cross section of employees at all levels in the organisation and in a range of roles.

Gordon argues technology such as Facebook’s Workplace, Zoom and Microsoft Teams, as well as flexible performance management tools, have already increased performance and productivity at the association.

Despite flexible working already being on offer at Peabody, Gordon says the organisation is still working on the practicalities of the concept.

She says: “Applications are considered on a case-by-case basis in discussion with managers and are underpinned by the principle that requests will be agreed provided the needs of the organisation and individual objectives are met.”

Peabody’s approach is close to what the CIPD is advocating and the legislation Siddiq has proposed. Ultimately, employers are going to have to hope that either the government permits Siddiq’s Bill parliamentary time or brings forward ­­workable ideas of its own.