Employees have had a limited, statutory right to request flexible working since 2003, which has slowly expanded over the years. Initially being limited to carers of children under six, it was extended to carers of adults, then to parents of children up to the age of 16 and then, from 30 June 2014, to all employees who met other eligibility criteria, including having been employed for a minimum of 26 weeks prior to making a request. At the moment, a request can only be made once in any 12 month period.
Also, in 2014 the statutory procedure that employers had to follow in dealing with such requests was replaced with a general obligation to consider requests in a “reasonable manner”, together with a new statutory Code of Practice from ACAS. The recommendations of the code are taken into account by employment tribunals when considering relevant cases.
In its 2019 manifesto, the current government pledged to consult on making flexible working the default for all jobs from day one, unless there is a solid business reason not to. In September 2021, the government finally published a consultation on legislative changes to the right to request flexible working which will run until December. As well as making flexible working a day one right, the paper proposes: allowing employees to make more than one request in a 12 month period; requiring employers to make alternative proposals where they are turning down a request; and making it clear that employees can ask for a temporary, time limited, change to their working hours.
Direction of change
While slow, the direction of travel to date has been towards expanding entitlement more and more. In the context of a post covid-19 economy, it looks like political pressure from all sides will result in the right to flexible working widening still further, but any changes are unlikely to be implemented quickly, possibly not until 2023.
Flexible working has always been an umbrella terms for a raft of different ways of working, be that part-time work, reduced hours, different hours, term-time working or job share. But it was really working at home that was the most coveted for working parents – and, often, least favourite arrangement of employers.
My personal experience is that organisations are either incredibly pro flexible working – or incredibly anti. There is no middle ground. Many times, an employer client has asked me: “how can we turn down this request” because “we have enough part-timers" or, “we don’t want to open the flood gates”? A request for home working was particularly regarded with suspicion.
From the start, flexible working requests were most often made by women as they tried to juggle their caring responsibilities with the world of work. This wasn’t simply because they were seeking the Nirvana of a better “work-life balance” – but often simply to enable them to participate in the labour market at all– very few nurseries and schools work to office hours.
The widely reported case of Alice Thompson, an estate agent whose request to leave the office at 5pm (rather than 6pm) so that she could pick-up her daughter from nursery was refused by her employer, is a perfect illustration. Her employer reportedly refused to consider her request seriously, claiming it couldn’t afford for her to work part-time and failing to consider any alternative arrangements. An employment tribunal awarded her £185,000 for indirect sex discrimination.
More recently still, an employment tribunal found that a British Airways stewardess had suffered sex discrimination when her request to reduce her hours by 25 per cent, following the premature birth of her daughter, was refused. Her employer claimed that allowing her to work part-time would hurt staff morale. It awarded her almost £40,000 in compensation.
Both cases demonstrate the inherent risk for employers in failing to take flexible working requests from women seriously – a discrimination claim where compensation is uncapped.
While women may have struggled to get their employers to agree to flexible working requests, evidence suggest that men have historically been less likely to make a flexible working request and are more likely than women to have it rejected if they do.
There seems to have been a particular stigma around men asking for flexible working. And, perhaps men instinctively sensed that in some fields even to broach the subject was career suicide? There’s no doubt that some employers have been very negative and suspicious of male workers who want to work more flexibly - usually in order to spend more time looking after their children. Perhaps this is because the ideal image of a masculine worker being a provider rather than a carer, is just very deeply engrained in the nation’s psyche? Whatever the cause, flexible working has been regarded as a “female thing” by many.
Where employers have allowed flexible working, they have generally been rewarded with extremely grateful employees, who are just so happy with working terms that make their lives a little bit easier, they are unlikely to push too hard for a pay rise or to move on to another employer who may not be so accommodating.
Covid-19 appears to have changed everything, overturning previously engrained attitudes – and accelerating a cultural shift that would otherwise have taken decades.
Suddenly, last year, everyone was working from home – and proving that it could be done effectively. At the height of the pandemic in April 2020, it was estimated that 47 per cent of the workforce was working at home, as opposed to 11 per cent in 2018. Many men – particularly those in senior positions, who have spacious, comfortable homes - have become converts, experiencing the benefits of playing a bigger role in their kids’ lives, saving money, and getting a bit more sleep as commuting was off the cards.
Time’s up on office hours?
Many employers too have clocked that there are significant savings to be made, be that spending less on office space and associated costs to, potentially, paying home workers less.
Employers who want to return to exactly how things were before may find that the genie is out of the bottle. It will be far harder to turn down flexible working requests when working from home has been done for so long during lockdown and, has been shown to work with no detriment to performance.
As a result, it looks like hybrid working (some time at home and some time in the office) is going to be enthusiastically adopted on a permanent basis by some of the country’s best known and biggest employers.
The irony is that women, who for so long had to fight for flexible working, risk losing out. The lower paid, less skilled, roles often filled by them, are being eliminated by technology that people now have at home. Support staff, who are so vital to keeping an office running smoothly, aren’t needed when everyone is working remotely.
It seems that this is the price for wider acceptance of flexible working as it is finally goes mainstream and becomes more than just a “female thing”.
Earlier in the summer, Deloitte announced that 500 secretaries were at risk of losing their jobs. The company said that the shift to remote working will increase digitisation and reduce the need for such staff. This is just the tip of the iceberg – numerous firms have already announced they are shedding secretaries and other support staff as the way we work changes.
The history of flexible working and the long struggle for acceptance, by mainly working women, is a classic illustration of the old adage “be careful what you wish for”.
Katy Meves is an Employment Law Specialist with Springhouse Solicitors: springhouselaw.com...