The myth of workplace flexibility

Flexibility and flexible working continue to be championed as “the way forward”, and the upcoming changes to the flexible working regime were lauded by the Government as part of a “wave of wins for workers”. But what do we really mean by flexible working, and is flexibility always a good thing?

Readers will be familiar with the changes to the flexible working regime, which are coming into force for requests made on or after 6  April 2024: the right to make up to two requests per year (instead of one); removal of the requirement for the employee to explain the impact of their request on the employer; reduction of the employer’s time for communicating a decision from three months to two; a statutory obligation to consult with the employee before rejecting a request; and the right to make a request from day one of employment (down from 26 weeks’ of service). The updated Acas Code of Practice reflecting these changes, is currently waiting for Parliamentary approval.  

Similarly, the right to carer’s leave will come into force on 6 April 2024, giving employees with long-term care commitments the right to take up to a week of unpaid leave each year, in half days or full days, and with relatively short notice requirements. Despite criticisms that it doesn’t go far enough, this additional option to take leave at short notice (without having to provide proof of why the leave is required) is seen as a step forward, with hopes that the increased flexibility will enable carers to remain in employment whilst balancing their caring responsibilities.

In contrast though, 2024 (possibly September) will also see the introduction of the right to request a predictable working pattern – the very opposite of flexibility. This right will apply to workers and employees whose working pattern is unpredictable in some way, whether in terms of the number of hours they work, the days and times they work, or the length of the contract.

Notably, any contract for a fixed term of 12 months or less is considered “unpredictable”. The worker will need to have worked for their employer for 26 weeks before they are able to make a request. The legislation is similar to the flexible working legislation, in that it obliges employers to consider the request and respond within a set time-frame (in this case one month) and they can only refuse a request on the basis of specified statutory grounds (which are, in the main, the same as those which apply to flexible working requests).

Whilst this right appears to contrast with the right to request flexible working, in my view the contradiction is in name only.   Indeed, a request for a predictable work pattern can count as a request under both pieces of legislation. At the heart of both regimes is an effort to redress the imbalance of power between employers and workers, and give workers more agency over the way they work.

For some, that will result in an increased flexibility, allowing them to balance their work commitments alongside other commitments. For many, their request may result in terms and conditions that are just as fixed as before, just different. For others, the instability and uncertainty that come with flexibility is not to their benefit and the right to request predictable working provides a mechanism for removing that instability.

Just as we should be careful about assuming that “flexibility” is always a good thing, we should be careful about assuming that it is always feasible. For those in professional services, or who work fairly independently of others, it may well be. There are dangers there though (brought to the fore by the pandemic), of flexibility leading to an inability to switch off from work with serious implications for employees’ health and wellbeing.

However, the reality is that for a large proportion of workers in the UK, flexibility is neither feasible nor desirable – a production process will require a certain number of workers to work simultaneously, in a set order; a hospital needs to be able to ensure that it has sufficient frontline staff to meet the demands on its services, as they vary through the day; a parent may need to know that they can leave work at a set time to collect their child from school.

In each case, giving workers the right to request a pattern that suits them and obligating employers to engage with that request, gives the worker a right to be heard and to have their needs taken into consideration. Whilst concerns remain about the legislation lacking teeth, with the employer being able to reject requests as long as their reasons fall within the relatively broad statutory categories, forcing employers to have the conversation with their workers is a start.

For many, along with the wider cultural shift encouraging employers to be imaginative about what may or may not be possible, or risk losing talented employees, it will be enough.