It has been accepted to be within industrial knowledge that women tend to bear a greater proportion of caring responsibilities for dependants. Prior to the pandemic, there was a presumption towards office-based working in many sectors and requests for flexible working arrangements might typically have been used by women to facilitate them meeting these additional care needs.
Over the past couple of years, we have seen that workforces can be productive and effective when working with an increased degree of flexibility. We anticipate more positive shifts in the near future – important employment law changes are on the horizon, which might assist in a push towards greater rights to flexibility. We hope that this serves to make the working environment more inclusive for women, and promotion more accessible.
The rights and obligations relating to flexible working requests are contained at Part 8A of the Employment Rights Act 1996. In 2019, the Conservative Government’s manifesto stated that they encouraged flexible working and planned to consult on the issue of making this the default position, save where employers had good reason not to follow this.
In 2021, consultation on this began with the proposals amounting to measures which would broaden the scope of the right to make a flexible working request. The main proposed change was to have this be a day one right, as opposed to a right accrued after 26 weeks’ qualifying service. The government in its response to the consultation has confirmed legislative changes such as the right to make a flexible working request now being a day one right. There are also proposed amendments to require employers to consult with an employee if they consider rejecting the request, permitting employees to make two request per year, reducing the decision period to two months, and removing the requirement for the employee to specify how the request might be facilitated.
Though it’s positive to see a move towards enhancing the right to make flexible working requests, that seems to be only the start of the solution.
There is no proposal for a requirement to grant flexible working requests in any given situation. While that might be understandable in some sectors, the working environment in 2020 has shown us that a great many employers could reasonably be expected to offer flexibility as standard. If companies adopt progressive policy making, such as a presumption towards flexible working, this could be a driving force for change. With the proposed statutory provisions in place, there are still no guaranteed circumstances in which it will be granted. If it is granted, it can lead to perceptions that those who work flexibly aren’t achieving the same levels of productivity or integral members of the team. By having flexibility enshrined in the working arrangements of a company, there is less opportunity for negative perceptions being attached to those who chose to work in these ways as it is merely the default position.
A move towards a presumption of flexibility would, hopefully, remove or at the very least mitigate the potential for those with care needs to be excluded from the workplace in any number of ways but, most significantly, in relation to promotion opportunities.
Given that women are likely to have a greater need for flexibility due to caring responsibilities, making this the norm avoids flexible working arrangements being to their detriment, either directly or indirectly, where there are promotion opportunities available. Where it is so important for young women in industry to see other female colleagues succeed to imagine themselves doing the same – or to have to “see it to be it” – having more women make the upward progression towards the boardroom can have a significant effect.
It’s also foreseeable that this would help to attract female talent to a business. Where an applicant can see she will be valued with respect given to her need for flexibility, rather than in spite of it, this is likely to work in the favour of any employer seeking to get the best candidate. Any applicant wants to feel that they’ll have equal opportunities in their future workplace. Progressive policies on flexible working can be one way to demonstrate this to women in the market.
The changes to the legal position on flexible working arrangements can be considered a minimum requirement, or a launch pad. The differing requirements of workers for any number of reasons, including sex, should be legislated for as standard, rather than there being an expectation that everyone must work in the same way for the same value to be attached to their work. If we want to see the workplace become a truly equal environment, a presumption towards flexible working where possible is a good starting point but it is certainly not the end of the story.
You can also see this article here: Employment Rights Act to support flexible working – Small Business Research and Enterprise.
If you have questions on any of the points raised in this article, please get in touch with Elspeth Drysdale or your regular Anderson Strathern contact.
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