The future of flexible work

Mismatch between workers wanting and getting flexible working  

Prior to the Covid-19 pandemic, the proportion of the workforce with flexible work arrangements was significantly less than the number of working people wanting to access flexible working. CIPD Working Lives research in 2019 showed UK workers tend to have a poor work–life balance[1]. Based on a measure of how often job demands interfere with family life, the UK ranked 24th out of 25 countries. The survey found that, excluding the self-employed, one in five employees (21 per cent) had no flexible working arrangements available to them. Yet the unmet demand extended far wider than this. Overall, two thirds of UK employees (68 per cent) wanted to work flexibly in at least one form that was not currently available to them, with the most popular arrangements being flexi-time (70 per cent of those who cannot use this arrangement would like to do so), compressed hours (58 per cent) and working from home (49 per cent). 

TUC research in 2019 showed that flexi-time was unavailable to over half (58 per cent) of the UK workforce, rising to nearly two-thirds (64 per cent) for people in working-class occupations[2]. This lack of access to flexible work was mirrored in the proportion of job adverts which offered flexible work, rising from 9.5 per cent in 2015 to just 15.3 per cent in 2019[3].  

Weakness of current rights  

Workers in the UK do not currently have a right to work flexibly, they merely have a right to request it. This right to request flexible working has existed in some form or other for almost two decades. It was originally introduced in April 2003 for parents of children aged under six (or under 18 if disabled) following a report by the Work and Parents Taskforce which found that if there was no intervention parents might drop out of the labour market. The right to request was characterised at the time as a “gentle push towards policies that would otherwise take 20 years to achieve”[4]. Since that point, the legislation has been incrementally widened until 2014, when all employees with at least 26 weeks' continuous employment, regardless of parental or caring responsibilities, were able to request flexible working arrangements. Only those legally classed as employees are able to make requests and only one request every 12 months is permitted[5]. 

Whilst one sided flexibility enforced by employers has been growing, working people experience significant barriers to accessing the types of flexible work they actually want. TUC research[6] conducted shortly before the pandemic, showed that one in three requests for flexible working were being turned down. Employers currently have an almost unfettered ability to turn down a flexible working request, given the breadth of the eight statutory “business reasons”[7] that can currently be used to justify a refusal. 

The rate at which flexible work requests are being rejected means for many the right to request is merely a right to be rejected.  Restrictions to one request every 12 months effectively locks employees out from further requests if they are rejected. This is in stark contrast to the flexibility demanded by employers, with sometimes weekly variations in working hours needing to be accommodated by workers[8]. 

Another significant barrier to accessing flexible working arrangements is the lack of legal right to appeal an employer’s decision once it has been made. The ACAS code of practice on the Right to Request Flexible work is clear that “the law does not require an employer to allow an appeal”[9]. A lack of a right to an appeal process undermines employees’ confidence in attempting to challenge decisions. 

There is a current possibility of taking an employment tribunal claim if the employer has not compiled with the Flexible Working Regulations or has committed an act of sex discrimination in turning down the request. But the process places considerable demands on potential claimants in terms of time, cost and stress which often puts employees off undergoing the process.  

The fact that employers can also take up to 3 months to respond to a flexible work request means employees often wait weeks or months before receiving a response. If flexibility is essential in order for a worker to be able to do a job, this wait can put them off applying for a role, pushing them towards part-time or insecure roles, where flexibility comes at the price of pay or employment rights.  

Impact of the right to request 

In order to better understand the impact of the right to request flexible working we analysed flexible working data from the year before the significant broadening of the right in 2014 and from 2020[10]. The broadening allowed all employees with 26 weeks service to request flexible working, regardless of parental or caring responsibilities.  

This shows that despite the length of time that the legislation has been in force and the broadening of its scope, it has not brought about the changes intended. The percentage of employees doing no form of flexible working (under the Labour Force Survey definition) has only changed by 4 per centage points, from 74 to 70 per cent between 2013 and 2020.  

Looking at a breakdown of the types of flexible work, it is interesting to note that zero-hours contracts (ZHCs), a negative form of one sided ‘flexibility’ have the second highest rise in usage. Forms of flexible working such as job sharing and compressed hours remain fairly rare and job sharing has actually become less common (see Figure 1).  

 

	% of employees (Q4 2013)	% of employees (Q4 2020)	% change
Flexi-time	11.3	12.8	13
Annualised hours	4.5	7.1	58
Term-time	5.4	4.7	-13
Job share	0.7	0.4	-43
Nine-day fortnight	0.4	0.4	0
4.5 day week	0.7	0.7	0
ZHCs	2.1	3.1	48
None of these	73.7	69.5	-6
Don't know	0.6	0.4	-33
On-call	2.1	2.2	5

Figure 1 Percentage of employees taking up flexible work options. 

The current right to request is available to workers after 26 weeks in a job. However, there is limited evidence that after 26 weeks the number of working people accessing flexible working significantly increases.  TUC analysis of the Labour Force Survey[11] shows that the percentage of employees on flexi-time (the most popular form of flexible work) with less than three months service is 9.3 per cent and only increases to 11 per cent for employees with between six months and less than 12 months service.  

The table below (Figure 2) suggests that the current right to request does not drive a significant increase in access to flexible working, but there is more of a gradual rise, perhaps associated with seniority or trust built over time.  

Length of time with current employer	% of employees on flexi-time
Less than 3 months	9.3
3 months, less that 6	9.5
6 months, less than 12	11
1 year, less than 2	11.7
2 years, less than 5	11.8
5 years, less than 10	12.3
10 years, less than 20	14.6
20 years or more	17.5
Total	12.8

Figure 2 Percentage of employees accessing flexi-time after length of time with employer. 

 

This suggests that the solutions forwarded by some to make flexible working the default simply by bringing forward the current right to request to the first day in a job would have little impact in opening up flexible working.  

The current legislative framework, despite the length of time it has been in place, is not leading to a significant increase in the number of workers accessing flexible work, let alone making flexible working the default and it has coincided with a sharp rise in the use of zero-hours contracts – an extreme form of one-sided flexibility.

Impact of one sided, enforced flexibility  

Most definitions of flexible work, including that of the Labour Force Survey, include arrangements such as flexitime, job-shares, and compressed hours but also zero-hours contracts and on-call working[12].  

The TUC’s support for flexible working does not include one-sided flexibility, available only on the employer’s terms. The flexible working arrangements that we are seeking to normalise are those which reflect genuine, two-way flexibility, helping workers balance work and their life outside the workplace. We have long been concerned about the prevalence of insecure work, including the practice of giving workers zero-hours or short-hours contract, and so are the public. TUC polling shows that over half (54 per cent) want zero-hours contracts banned and seven in ten (70 per cent) believe that workers should have the right to 28 days’ notice of shifts[13]. 

Our analysis shows that ahead of the coronavirus pandemic, there were 3.6 million workers in insecure work[14], with BME, women and disabled workers[15] disproportionately represented. Recent research by the TUC and Race on the agenda[16] shows that BME workers are far more likely than white workers to rely on zero-hours contracts. For instance, just 2.5 per cent of white men are on zero-hours contracts, compared to 4.1 per cent of BME men. The highest proportions are found among BME women at 4.5 per cent, compared to 3.2 per cent of white women. 

Those with no or few guaranteed hours are often offered work at the whim of their employer, facing irregular hours and therefore irregular income, as well as last minute shift cancellations. Rather than pick and choose their hours, many workers feel compelled to work whenever asked. If shifts are turned down, there is an implicit threat that they could lose future work. So, flexibility exists for the employer, but not the worker. 

This makes it nearly impossible for workers to plan their finances or time. This is a particular issue for parents who must arrange childcare or those with other caring responsibilities.  

Many also miss out on rights and protections that many of us take for granted, for example the right to sick pay and protections from unfair dismissal or statutory redundancy pay. During the pandemic we have seen the damaging impacts of insecure work. TUC research[17] shows that 67 per cent of insecure workers say they receive nothing when off sick compared with 7 per cent of secure workers. Insecure workers who need to self-isolate or take time off sick have to continue going to work in order to pay the bills. 

Stigma attached to flexible working  

Although a wide range of organisations[18] are clear about the benefits of flexible working for both employers and workers, significant barriers remain in relation to accessing flexible working due to discriminatory attitudes and the impact of workplace systems and cultures which are still constructed around a lack of flexibility being the norm.  

There is a stigma that has been attached to flexible working, largely because of its association with women seeking to balance work and caring commitments[19]. Research conducted by BEIS and EHRC[20] found that nearly two in five (38 per cent) mothers did not request a type of flexible working they wanted, typically because they did not think it would be approved or because they were worried their employer would view their request negatively. The same study revealed that over half (51 per cent) of women had experienced discrimination or disadvantage as a direct result of having a flexible working request approved. 

These workplace cultures can put people off from requesting flexible working altogether. Equity, the entertainment union, has highlighted that the particular challenges faced by those in the entertainment industry where individual performers and creative workers on highly insecure contracts feel they are vulnerable to exclusion from employment opportunities if they make demands in favour of improving work life balance.

NASUWT research[21]has shown that that only 8 per cent of teachers said flexible working requests were encouraged in their workplace. Many teachers reported that they did not bother to request flexible working given the low success rates and those that did and were turned down frequently did not seek to appeal the decision as they felt they were unlikely to be successful. 

Accessing flexible work is also worsened by the lack of transparency about potential flexible working arrangements in job adverts, meaning many people cannot find suitable jobs or have to ask about the possibility of flexible working during the interview process.  As the government themselves recognised in their consultation on proposals to require publication of flexible working policies, many workers are reluctant to do so for fear of being discriminated against[22].