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Making Flexible Working the Default: my response to BEIS consultation

By December 1, 2021Read
Sarah Jackson OBE

READ  What is being consulted on is not default flexibility.  Default flex means that all jobs are advertised with the available flexibility (if there is any) already designed in, to be taken up if wished by the successful candidate.  A day one right to request, although welcome, leaves the responsibility with the employee to ask.  It is a missed opportunity not to require employers to build flexible options into each job as it is advertised.  The evidence is that many people will not, and cannot, apply if flexible options are not clear in the advert.  A day one right to ask will help only those who were able to accept a full time, inflexible role, and whose circumstances change before they have completed 26 weeks of employment.

8             Do you agree that the Right to Request Flexible Working should be available to all employees from their first day of employment?

Strongly agree, as a necessary but not sufficient response to delivering default flexibility.

The 26 week eligibility threshold dates from the original Right to Request legislation, proposed by the Work and Parents Taskforce convened in 2001 by the then Secretary of State Patricia Hewitt MP.  The aim then was understandable, looking to reassure employers that there would be time to establish a trusting relationship with a new employee; and working from the assumption that any request would be an accommodation for the individual.   We are now almost twenty years further on in our understanding of the benefits of employee control[1] over working patterns, and in employer experience of managing flexibility.  Eligibility to make a request from day one is a necessary piece of good housekeeping, with little bearing on the wider questions of how to encourage employers to move to default flexible working.

The consultation proposes a day one right to request flexible working, ie a new employee may make such a request from their first day in employment.  It is true that unexpected things do happen in people’s lives, regardless of length of service, as the consultation notes.  A day one right to request will help some (few) of those who take a new job on a particular working pattern and whose circumstances change within the first 26 weeks of employment.  But it will not help anyone who needs flexibility before they can take a job in the first place.  For example, research by Timewise for the Joseph Rowntree Foundation has shown that 1.5 million people are unable to move on from low-paid, part-time roles because they cannot find a new role with the working pattern they need[2]. The Resolution Foundation showed that close to half of working mothers surveyed were working in a lower skilled job in order to achieve the part-time hours they needed.[3]  Because of the dearth of flexible opportunities, parents and carers in the performing arts industry are not working in the roles for which they were trained, and they regularly forgo career opportunities[4].

Because of this limitation, others suggest that the Right to Request be extended to recruitment – to have the right to make a request at interview.  There are two objections to this approach.  The first is that the onus is still on the candidate to ask.  In this sense, we see no progress from a mystery shopper exercise carried out by Working Families in 2009[5], which showed that many employers were willing to talk about flexible working at interview, if the candidate raised the question and, in many cases, with the proviso that the candidate would have to make a business case to support their request.  The second and very obvious objection is that, having raised the question, the candidate would have no way of knowing whether a subsequent rejection for the role was influenced by their interest in working flexibly.

Most efficient, from the employer perspective; most equitable, from the candidate’s point of view; and more likely to deliver the government’s stated legislative objective “to enable two-sided flexibility by providing a framework that facilitates a discussion between employee and employer about what flexible working options are possible”, is for the employer to make clear when advertising what if any flexibility is possible, and proactively to prompt a discussion at interview with the candidate.  This would require a role by role approach, rather than the use of a blanket statement as considered by the 2019 consultation on Publishing Flexible Working Policies and Advertising Jobs as Flexible.  That consultation missed the opportunity (as does this one) to move beyond the one size fits all approach originally proposed by The Private Sector Employers Working Group on Flexible Working that I chaired for the then Minister for Equalities Maria Miller MP between 2011 and 2013, which devised the Happy to Talk Flexible Working strapline as a first step towards encouraging employers towards a default approach.   Guidance published by members of the group, for example Timewise and Working Families, even then emphasised the value of being explicit on a role by role basis about what flexibility was available.

10           In your organisation, do you currently accept requests for flexible working arrangements from employees that have less than 26 weeks continuous service? Please answer this question from the perspective of the employer.

  • Yes

Until 2018, I was the CEO of Working Families, a small voluntary organisation of c25 staff.  Thus I learned (across more than 20 years in that role) how best to make flexibility work within a small business.  From early on, flexible working was available to new employees from day one of employment.  I found it most practical to discuss desired flex patterns at interview, having had on a couple of occasions had the experience of appointing someone who then requested a working pattern that was different from what had been advertised.   That kind of discussion – essentially a day one request – was inconvenient at the least, because it required me or the hiring manager concerned to reconsider and sometimes reconfigure expectations of the role and of the new staff member.

Moving to advertising every role with its potential for flexible working already defined, removed inconvenience and uncertainty.  Because of the purpose of the organisation – promoting family friendly working – candidates were confident that a conversation at or prior to interview would be honest and that their suitability for the job would not be affected by the working pattern they sought.  I learned that the best approach was to have fully thought-through the working patterns that would best suit the organisation and the role, before opening this conversation to candidates, so that I and other senior managers were prepared for any request and were confident that we could say no if something a candidate proposed was not workable.

The consultation suggests that a day one right to request is likely to “nudge” employers into the practice I describe above.

Two problems are immediately apparent.  It is likely to be a slow process; and, in the meantime, the responsibility remains with the candidate to raise the question.

Evidence to date suggests that change is unlikely to happen at the kind of pace that is necessary to drive progress towards gender equality and to address the UK’s productivity challenges.  The Timewise Flexible Jobs Index has shown the slow pace of change, from 10% when the  first Index was published in 2015, to 26% in by summer 2021[6].

Surveys[7] have consistently shown since summer 2020 that the majority of people who have worked from home since the first lockdown wish to retain control over when and where they work, as their employers bring people back onsite.  A mindset shift is taking place, with the result that flexible working is no longer accepted as an individual accommodation but is now a general expectation.  There is a risk to the UK’s economic recovery if employers cut themselves off from talent by adopting a business as usual approach to recruitment that fails to highlight available flexibility[8].  Default flexible working means that flexibility is available as needed, and does not require a request on the part of the employee.  What is possible and practical for the role is already on the table.

To provide the kind of enabling framework within which conversations about flexible working may safely take place, government needs to recognise that for many candidates, this conversation will not happen unless it is initiated by the employer.

Timewise have shown the importance for the individual of ensuring that roles are advertised flexibly, with two in five candidates not willing to apply for a job that does not do this[9].

If the aim is to create default flexibility, it is misconceived to conclude that the flexible working conversation should begin with an employee request because, as long as the responsibly remains with the employee to ask, flexible working remains a variation from the norm.

Default flex needs to start with the employer thinking more carefully about what the business needs and how different ways of delivering the same role might open up opportunities to attract and retain people. It is in the employer’s interest to do this and not to leave it until an employee or candidate asks the question.  It would be surprising if an employer were similarly unprepared for a request from a potential client or customer.

The current proposals reveal an approach to a systemic problem that is neither strategic nor systemic but that continues to treat this as an individual issue, with the solution an individual accommodation.

11           Given your experiences of Covid-19 as well as prior to the pandemic, do all of the business reasons for rejecting a flexible working request remain valid? Please answer this question from the perspective of the employer.

  • No

All but a detrimental impact on quality and on performance remain valid.  These have always been problematic, because they imply that the employer is anticipating negative impact rather than being able to objectively justify a refusal on those grounds.  The employer specifies what has to be done by the employee, by when and to what standard.  It is hard to imagine a situation in which the employer could reliably foresee or objectively justify that changing the time, place or length of working hours would affect either the quality or the performance of the work done by the employee.

14           Do you agree that employers should be required to show that they have considered alternative working arrangements when rejecting a statutory request for flexible working?

  • Strongly agree

Currently it is too easy for the employer to refuse a request, simply by citing one of the eight reasons.

The alternative suggested must be required to be suitable, to ensure that the employer engages in good faith, rather than fulfilling this obligation by suggesting an alternative working pattern that the employee will find impossible to accept.

The employer ought alternatively to be permitted to demonstrate that there is no suitable alternative.

This requirement has the benefit – not least for the employer – of making it less likely that the employee will feel disregarded or poorly treated.  If the employee can see that the employer is looking for a solution – even if it is not optimal from the employee’s point of view – it is less likely that the employment relationship will be damaged as it might have been by an outright refusal; more likely that the employee will try to find a way to work within the employer’s parameters; and more likely that the employee will speak well of the employer, despite what may have been a disappointing outcome.  For this reason, it is a wise investment of time by the employer in terms of reputation, and of the impact on employee engagement, to be seen to treat people fairly by managing flexible working requests thoughtfully and on a case by case basis.

Such a requirement might also improve the current situation where the business case for refusal cannot be queried, only the process.   This has been a weakness of the legislation to date, in that as long as the process is followed correctly, the employer’s reasoning or business case cannot be challenged.

Requiring the employer to show they have considered a suitable alternative will help to create longer term change in employer behaviour.  The process of considering may in itself reveal solutions that had not previously been thought of.  If you believe that nudge works, this will nudge better behaviour.

18               Do you think that the current statutory framework needs to change in relation to how  often an employee can submit a request to work flexibly?

  • Yes


22           If the Right to Request flexible working were to be amended to allow multiple requests, how many requests should an employee be allowed to make per year?

  • There should not be a limit on the number of requests an individual can make

The current framework is inflexible and not responsive enough to changing situationsDrawing on my experience of employing staff, and also of the calls that were received by the Working Families legal advice service during my time as CEO, I can say that the great majority who request flex have thought about their options carefully, and that a constructive response from the employer, building in trial periods and with manager support for the change, generally results in a successful new arrangement.  However, unexpected things do happen.  For example, childcare arrangements that seemed reliable, may fall through.  A child, spouse or other family member may fall ill or suffer an accident and require additional care.  In such circumstances, it is counterproductive to refuse to discuss a request to vary hours, on the grounds that 12 months have not passed since the employee’s most recent request.

In reality the number of requests will depend on whether the employer accepts or refuses the initial request.  If the employer accepts it, then it may be reasonable to suggest that there should be a material change (whether in business organisation or in employee life) to justify making another request within, say, six months.

In 2020 I supported social business Flexibility Works with a research project commissioned by the Scottish Government, which looked at how businesses used flexible working to manage during the pandemic.  Focus groups, primarily of low income workers, demonstrated how sensible and pragmatic they were about the potential for and limits of flexibility in their roles[10].   Research by Parents and Carers in Performing Arts echoes this, with one respondent reporting, “They have made me incredibly anxious and depressed that my job is not as readily flexible as it easily could be with more consideration and organisation”.[11]

If the employer has had a sensible discussion and explained what might work, few employees are going to submit repeated options.  But they might if the employer keeps saying a blanket “no”.

However, if the number of requests in a 12 month period does remain as it is currently in the law, then guidance should encourage informal discussions/ negotiations outside of the statute as good practice.

20           Do you think that the current statutory framework needs to change in relation to how  quickly an employer must respond to a flexible working request?

  • Yes


24           If the Right to Request flexible working were amended to reduce the time period within which employers must respond to a request, how long should employers have to respond? 

  • More than two weeks, less than one month

Practically, it does not take long to assess or respond to a request to work flexibly.

I have dealt with many requests by staff to vary their working patterns, and so I know that it does not take long to respond when you already have a sound understanding of what flex is possible within a role.

It is unfair to keep the employee waiting for an answer, simply because the employer has not done the necessary thinking.  For example, drawing on my experience of managing the Working Families helpline until 2018, it is challenging for a woman planning her return from maternity leave to achieve certainty about her future, when her childcare plans depend on the employer’s answer to a flexible working request, and her working patterns depend on the availability of appropriate childcare.  She is unlikely to be arranging childcare before her child is six months old, and so on the current timings may run out of time (and statutory maternity pay) if the employer finally responds “no” to her request at nine months.

A reduced time period in which to respond should make it become sensible for employers to have “future proofed” themselves against requests by having done their thinking for a role as routine.  For this reason, I suggest that any request should be responded to within four weeks.

If the request is refused, a further four weeks maximum to handle the appeal would be reasonable.

26           Are you aware that it is possible under the legislation to make a time-limited request   to work flexibly?

  • No

27           What would encourage employees to make time-limited requests to work flexibly?   Please provide examples.

The fact that I, as a long-term campaigner and policy leader, involved in supporting the development of the original ACAS guidance, did not remember that time-limited requests are already possible, indicates that it is probably not widely known.  Clearly, good communication is required from government and, more particularly, from employers.  The parallels with Shared Parental Leave are worth considering, where there can be a striking difference in take-up rates between organisations whose policies are, on the face of it, almost indistinguishable.  At the time of its introduction, the bank Citi had, for example, an offer that was similar to many others in terms of flexibility and pay, but take-up, including from senior men, was higher[12].  They had advertised it extensively, and employed a dedicated staff member to answer questions.  Fathers felt like they really wanted men to take up the new right and acted accordingly.  Similarly, we have seen  more recently the success that the insurer Aviva has had in increasing the numbers of employees taking parental leave, having invested considerably in promoting  it and encouraging its take up[13].

28           Please share your suggestions for the issues that the call for evidence on ad hoc and informal flexible working might consider.

It would be useful to consider the limitations of the current right to Time Off for Dependants, which is restricted to situations that are an emergency or could not have been foreseen.   Carers and parents often need to manage regular or occasional appointments, or deal with child sickness which extends beyond the couple of days covered by Time Off for Dependants.   There is extensive evidence that failure to provide small elements of ad hoc flexibility can tip carers in particular out of the labour market entirely[14].

It would be helpful to look at the difference between rigid formal flexibility (most often used by women working part time) and informal “under the radar” flex, more frequently taken up by men.  How to close this gendered gap?  And how to ensure that if, as seems probable, women choose to take advantage of hybrid working in greater numbers than men do, employers are alert to the dangers of proximity bias (or, “out of sight is out of mind”), and are encouraged to monitor performance scores and career progression by gender and by working pattern.

Can we also be sure that informal flexibility is not exacerbating existing inequalities? Informality often relies on an individual’s ability to articulate their needs, which is tied up with confidence, class, social capital and job security.  Considering evidence from the performing arts industry in particular, research has shown that those who are able to maintain a career in the industry are those able to rely on various forms of social capital to mitigate their caring responsibilities.   Reliance on access to informal flexibility and on manager discretion may compound that disadvantage.

The Taskforce could also examine ways to encourage employers to consider the advantages of temporal flexibility for those in their workforce whose roles are unsuitable for remote working.  As the TUC has shown, for many workers, the wish for flexibility around working hours is also linked closely to the need for certainty and predictability around working times.

There is much evidence of manager scepticism and resistance to flexible working[15].  Support and training for managers will be essential if we are to see employers moving from compliance, to policy, to embedded flexible culture.  The kinds of team based approaches promoted by, among others, Working Families and Flexibility Works, are proven interventions.

[1] “A wellbeing culture is where your line manager gives you control and autonomy over your role and makes you feel valued.”  Professor Sir Cary Cooper, Manchester University Business School, quoted in 17th January 2018

[2] Joseph Rowntree Foundation 2016  How flexible hiring could improve business performance and living standards

[3] Resolution Foundation 2012 The Price of motherhood: women and part-time work

[4] Parents and Carers in Performing Arts 2019 Balancing Act

[5] Working Families 2009 We need to talk about … hours: job advertising in the Civil Service.  An analysis by Working Families

[6] Timewise 2021 Flexible Jobs Index 2021

[7] See for example, EY 2021 Work Reimagined Employee Survey 2021

[8] Randstad 2021 The Great Resignation

[9] Timewise 2021 Gaining an edge in the fight for talent

[10] Sarah Jackson 26 May 2021

[11] Parents and Carers in Performing Arts 2020 Backstage workforce research

[12] Shared Parental Leave one year on: the employer perspective


[14] See, for example, Working Families 2021 Finding Flexibility and 2014 Off Balance

[15] See, for example, Cap Gemini Research Institute 2021 The Future of Work