Making flexible working the default
In the 2019 Conservative manifesto, the party pledged to consult on making flexible working the default unless employers have good reasons not to. This consultation has since been published on 23 September 2021 and closed for submissions on 1 December 2021[1]. The consultation stated that ‘a world class approach to flexible working is a key part of the Government’s ambition to build back better, ensuring that our flexible labour market is primed for the opportunities and challenges of the post Covid-19 economy’[2].
The experience of the pandemic has significantly changed the landscape of flexible working. The numbers of people who worked from home during the Covid-19 pandemic (around one third of the workforce[3]) and unequal access to other types of flexible working for those who cannot has sparked public conversations about what the future of work should look like, including where, how and when we work[4].
There is widespread recognition of the role that flexible working can play in ensuring certain groups, including women, disabled workers and older are able to access and stay in work. Making flexible working available in all but the most exceptional of circumstances is essential for promoting greater gender equality. Research has shown that many of the underlying causes of the gender pay gap are connected to a lack of quality jobs offering flexible work[5]. Due to the unequal division of unpaid care and the lack of flexible working in jobs, women often end up in lower paid part-time work[6].
In addition, the disability employment gap in 2020/21 was 28.7 percentage points and the unemployment rate for disabled workers in 2020/21 was eight per cent, almost double that of non-disabled workers (four per cent). Disabled workers also experience a significant pay gap. In 2020/21, median hourly pay for disabled employees was £1.90 lower than it was for non-disabled employees[7]. Disabled workers have a different set of rights, and access changes to hours or location through the reasonable adjustment provisions set out in the Equality Act 2010. However, increased access to flexible working for everyone would help to ensure disabled workers could work flexibly without being treated with stigma or discriminated against.
Another key group to consider are older workers. In less than 20 years, one in four people in the UK will be over 65[8]. In many ways this trend of lengthening working lives is a positive development. It reflects the fact that current generations are living longer than previous generations, and extending working lives has a key part to play in ensuring workers can maintain a decent standard of living in old age. However, whilst many chose to retire before reaching state pension age, one in eight are forced out by ill health, and others are unable to fit work around caring responsibilities[9]. Stronger rights to flexible working would benefit older workers managing long-term health conditions or with increased caring responsibilities to stay in work longer should they want to. In an ONS survey[10] of adults aged 50 to 70 who had left or lost their jobs since the start of the pandemic, almost one quarter (23 per cent) said flexible working would encourage them to return to work.
We must make sure that flexibility is available to everyone. Previous TUC research[11] has shown that those who have worked from home during the pandemic are more likely to be offered flexibility in the future. We cannot allow flexible working to become a perk for the favoured few - offered to a minority of the workforce who are able to work from home – and serving to reinforce existing inequalities.
As well as being available to all, we need to ensure that flexible working benefits workers. Steps need to be taken to ensure that, after the pandemic, the experience of those working from home does not mirror the damaging one sided ‘flexibility’ experienced by so many on zero-hours contracts, with arrangements imposed that only benefit employers. Increased access to remote working must not come at the price of reductions to workers pay, increased intrusive remote surveillance, unsafe working environments, lack of access to union representatives, an increase in unpaid hours worked and draining, always on cultures.
The TUC welcomed the opportunity to submit a response to the consultation. Given that four in five workers in the UK want to work flexibly and the benefits of flexible working for so many groups, we also felt it was essential that working people were given the same opportunity to share their experiences and insights with the government, helping to ensure that the voices of working people shape the government’s response.
Therefore, the TUC and Flex For All partners – Mother Pukka, Pregnant then Screwed, Fatherhood Institute, Young Women’s Trust, Fawcett Society, Working Families and Gingerbread created an online tool where members of the public could submit a response to the consultation. The online version contained a simplified and shortened version of the original 57-page consultation document and allowed people to send their views directly to BEIS.
This report contains a summary of what 5744 members of the public told BEIS. We urge the government to listen to the voices of working people and ensure their experiences are included in their plans for amending flexible working legislation.
The government consultation focuses on adjusting the law so that employees can make a flexible working request from day one of the job rather than having to wait 26 weeks as employees do now. The TUC believes this does not go far enough to ensure that all workers have access to flexible working. Previous TUC research has demonstrated why a request-based system does not work and therefore making the right to request flexible working a day one right will not lead to increased access to flexible working. This is largely because many workers do not ask for flexible working for fear of rejection or negative treatment, three in ten flexible working requests are denied and those who do work flexibly experience negative treatment as a result[1].
The failures of a request based system are also demonstrated in national statistics. Despite the length of time legislation has been in place, it has not increased access to flexible working. The proportion of employees doing no form of flexible working (under the Labour Force Survey definition) has only changed by 4 percentage points, from 74 per cent to 70 per cent between 2013 and 2020[2].
The responses from the public to the consultation also demonstrates the pitfalls of a right to request system. In consultation responses people told the government that:
Flexible working is essential for them to be able to work…….
The large majority of people who sent a consultation response (87 per cent) wrote in their answers that parenting was a key reason that flexible working was important to them. In addition, one in fourteen (seven per cent) respondents told us in their answer that flexible working was important to them because they were disabled or had a health condition and one in twenty-five (four per cent) stated that flexible working was important due to other caring responsibilities.
A key theme in consultation responses was that without flexible working, people were placed in an impossible situation of having to reduce hours, take unpaid leave or leave work altogether. Flexible working is essential for people to be able to support their families and, in turn, contribute to the economy.
– The company officially denied my request for flexible hours after a month of returning to work, forcing me to quit and leaving me, a single mother, with no job and no means of income. Single mum, unemployed/looking for work
– Without flexible working my hours would halve and my prospects with disappear. Working mum, public sector.
People also told us that flexible working was beneficial for their mental health, improved their productivity, addressed barriers they faced as older workers and was better for work life balance.
But they do not feel comfortable asking about flexible working in job interviews……
Mums, dads, disabled workers and so many others need flexible working to be able to work and therefore cannot risk waiting until they are in a job before they ask. The government’s proposal of a day one right to request would mean workers who need flexibility would be forced to ask on their first day of a job or during the recruitment process.
However, three quarters (76 per cent) of people shared in their responses that they would not feel comfortable asking for flexible working in a job interview and only around two in ten (21 per cent) said they would. For many people this was because they feared they would be viewed negatively as a result.
– I know the minute you mention it, you pretty much take yourself out of the running for the job. Single mum, unemployed/looking for work.
– I would be worried about being immediately categorised as a trouble maker, or someone who was unreliable. I’d be concerned the job would go to someone without kids or a man. Working mum, sector not provided.
It would therefore be far easier if flexible working options were included in job adverts……
Almost all of those who sent in consultation responses (97 per cent) said it would help if the types of flexible working available in a role were included in job adverts. Respondents felt this would save them time in their job search, remove the stigma of asking for flexible working and make the whole process far more transparent.
– This is a game changer. Transparency from the get-go means we can have a proper conversation with the hiring team and not be riddled with anxiety about when to bring it up. Mum, unemployed/looking for work
Having flexible working options in job adverts would mean that people know before applying what flexibility would be available to them, addressing barriers that those who need flexibility face in recruitment and would also serve to normalise flexible working.
And when they do ask requests are turned down too easily…..
The government consultation also asks if the business reasons that employers can use to reject flexible working requests should be amended. Overwhelmingly, people who sent in responses said they should. Almost nine in ten (87 per cent) of those who sent consultation responses believed that employers can turn down flexible working requests too easily, with only seven per cent believing they couldn’t.
Respondents felt the broad nature of the business criteria meant that employers could turn down any and all requests and meant employers did not have to consider flexible working requests thoroughly.
– The business reasons are very broad and extremely vague, meaning it is so easy to say no without giving it sufficient thought. Working mum, private sector.
Recommendations
If the government truly wants to make flexible working the default, they must do more than tinker round the edges of failed flexible working legislation. The consultation focuses on making the right to request flexible working a day one right, instead to unlock the flexibility in all jobs and for all workers the government should introduce:
- a legal duty on employers to consider which flexible working arrangements are available in a role and publish these in job advertisements, with the new postholder having a day one right to take up the flexible working arrangements that have been advertised. If an employer does not think that any flexible working arrangements are possible, they should be required to set out that no form of flexible working is suitable in the job advert and why. All roles should be deemed suitable for flexible working unless it can be shown that the unavailability of flexible working is a proportionate means of achieving a legitimate aim. Flexible working legislation would reflect objective justification as set out in the Equality Act 2010.
- a day one right to request flexible working for all workers, with the criteria for rejection mirroring the objective justification set out above. This would replace the current business reasons. Workers should have a right to appeal and no restrictions on the number of flexible working requests made.
Members of the public were almost unanimous in supporting these solutions in their consultation responses, as:
· 98 per cent of those who responded stated in their responses that employers should have to include the possible flexible working options in all job adverts, with employees having the right to take these up from their first day in the job.
· 96 per cent of those who responded stated that there should be far fewer permitted reasons why employers are legally allowed to turn down flexible working requests
· 96 per cent of those who responded stated employers should have to respond to flexible working requests more quickly, and there should be no limits on the number of times employees can request flexible working.
The government must also take steps to ensure that flexible workers do not experience negative impacts on their health and wellbeing from excessive working hours by introducing a statutory right for employees and workers to disconnect from their work so as to create “communication free” time in their lives.
If the government genuinely wants to make flexible working the default, we cannot continue to rely on a system based on individuals asking nicely and hoping for the best. The government consultation offers a real opportunity to deliver the change needed to unlock the flexible working opportunities contained in all job roles and to make genuine flexible working the norm. This would transform the lives of working people across the country. We urge the government to listen to the 5,744 people who responded to the consultation and ensure the views of working people are reflected in their decisions.
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