Tue 18 Feb 2020

Only apply if you are willing to work flexibly……

In July last year Conservative MP Helen Whately introduced a "Ten Minute Rule" bill aimed at making flexible working the default position for all jobs, instead of individuals having to request alternative working patterns.  

Ten Minute Rule bills are often introduced as a way of gaining publicity for an issue and without Government backing they would not be expected to become law.  However, one General Election and two Queen's Speeches later and it seems this particular proposal has gained traction.  The Queen's Speech in December referred to measures to "encourage flexible working" and the background briefing notes to the Speech set out one of the main elements of the proposed new legislation - the Employment Bill - will be to "make flexible working the default position unless employers have good reason not to". 

While this proposal is clearly stated as being subject to consultation, supporters say it will bring significant benefits to those with caring responsibilities.  There is significant evidence of the "parenthood penalty" and recent statistics from the ONS show that the gender pay gap increases for women over the age of 40.  It is often parents, including women in this age bracket, who seek to work more flexibly as they try to navigate their children through their school years so joining the dots between flexible work and the gender pay gap is not difficult. 

According to figures relied on by Ms Whately when introducing her bill, only 9.8% of jobs paying more than £20,000 are advertised as being flexible.  While employers are currently required to seriously consider requests for flexible working, the right to make a request only applies to employees with at least 26 weeks service.  For many with caring responsibilities that initial full time working requirement combined with not knowing whether an employer will agree to a flexible working request will prevent them from applying for many roles. 

So what could the world of work look like if flexible working was the default position?  Obviously there will still be jobs that require to be done full time, and to be done by one individual.  While we don't know the details of how flexible working as the default position will work in practice, we can probably assume that employers who believe a role needs to be done full time will not only have to explain why that is, but also why it needs to be done by one individual (and not a job share) and, if the employer wants to specify a location that the work must be done from, why that is the case too. 

The most obvious benefits for both employer and employees of this system would be the increased opportunities.  More roles that individuals can apply for who are not currently able to meet full time/fixed location working requirements and a wider pool of talent for employers to select from.  Making more senior, better paid roles flexible will open them up to a larger and more diverse pool of candidates - potentially enabling business to retain more individuals with childcare responsibilities as well as older employees. 

This approach to flexible working also brings with it the real possibility of the whole workforce benefitting.  Currently flexible working is all too often seen as only something for those with caring responsibilities or less ambition, it is not equated with continuing career progression and success.  Becoming the default position would help remove any stigma, allow those in flexible jobs to progress and allow those who currently feel they cannot request flexible working to find a better work/life balance. 

But will legislation be able to cover all potential loopholes?  It seems unlikely that employers will be prevented from agreeing with a successful candidate that their working pattern will be the traditional full time, five days a week, at the businesses premises, if that is their preferred option.  If the "best candidate" wants to work full time then can we be sure that he or she is in fact the best candidate on merit, and not simply because they have a preference for traditional working hours?  And will unscrupulous employers start to take the gamble that men are more likely to want to work full time than, for example, women in their 30s and 40s and offer employment accordingly?

Flexible working also has its problems - a whitepaper published last year by healthcare provider Nuffield Health highlights the negative effects such as low productivity and poor employee relations can set in after three days or more of remote working a week.  And while working from home may benefit some staff, less experienced employees may benefit from more hands on supervision in a traditional working environment.

These are all issues which the planned UK Government consultation on this topic will have to address head on and hopefully the positives of flexible working as a default are seen to outweigh the negatives as future generations of workers are likely to benefit from such an approach. 

If you would like to find out more about the new rights contained in the Employment Bill and all the other employment law changes coming into force in 2020 then come to our free Essential Employment Law seminar taking place at our Edinburgh office on 24 March and our  Glasgow office on 25 March.  Registration is at 8am for an 8.30am start.

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