A group of experts discuss the right to request flexible working, six months since its implementation. Chaired by Iris Cepero
How do you evaluate the implementation of the change to flexible working legislation since it came into force in the UK last June?
Zofia: It depends on what you want to evaluate. If we are talking in terms of number of people who have requested flexible work since the new legislation, it is possibly too early to have such evidence. It is also important to point out that before the legislation was changed nine out of 10 UK companies already offered some kind of flexible work (from a survey of CBI members in 2013), and 63% of workplaces already allowed employees to request for flexible work – and there had not been a huge deluge for requests.
Evaluation of the implementation could be measured on the number of people who know about the change of the right-to-request legislation. Recently it has been reported that although 54% of 2,000 UK workers surveyed by O2 Business knew about the change, only 23% had requested flexible employment. Additionally, the same survey showed that only 12% of employees thought that their work would embrace flexible working in 2015, which suggests that if employees wanted to undertake flexible work it may be hard for them to do so.
Alex: In evaluating it we need to look beyond the headline figures that might come out, especially those just based on employers’ self-reported data and we need to try and understand what’s actually taking place in the workplace.
When we talk about equality and equal opportunities often there’s what is called “empty shelves” where employers will have policies in place and will say that they’re implementing the policies, but then in practice, the policies are not actually being utilised or are very restricted to particular sections of the workforce, often higher-end workers or managers. We also need to look at what employees are saying through employee surveys and case studies to understand what is actually happening in the workplace.
When employees have little bargaining power they are likely to be afraid to make requests to their managers. My research into employer-controlled flexibility has found that when you have policies which are meant to protect employees, employees are too afraid to actually make use of those policies because they don’t want to be seen as being difficult or causing trouble.
Philip: Quite often employees are not even aware of their employment rights until they need to be. Employees in many cases are also not aware of the working polices of their employer, and often this will only come to their attention if the employer brings them to their attention
Ksenia: It is important where the discussion about flexible working starts. At the moment it’s more “why should you work flexibly?”, as opposed to, “why shouldn’t you?”
I agree with Alex on the methods of data collection around the reporting of the policies and what is available. I can only add that CIPD did a survey in the summer of 2014, so just after the implementation of the right-to-request flexible working legislation, asking employers about the availability of the flexible working policies in their workplaces. Still one in 10 said actually, we don’t offer flexible working options. That tells you something about how aware employers are of the policy. That survey showed that awareness was lower among small and medium enterprises.
Equally you have to consider the difference between having a formal workplace policy on flexible working and making informal arrangements. About four in 10 organisations say that when a flexible working request is made they don’t amend the contract, it is just agreed informally with the line manager. So, to what extent flexible working arrangements are accounted for in the statistics is questionable.
Research by Samsung UK (2,000 office workers and 200 business owners) shows that a quarter of businesses do not trust employees with flexible working arrangements?
Philip: To a large extent any mistrust from an employer’s point of view arises from the limits on an employer’s ability to oversee the work actually being done so there’s likely to be a feeling of loss of control. When somebody is working flexibly outside the standard workplace, it potentially makes the monitoring of an employee trickier. There may also be concerns by the employer about timekeeping and how much work is actually being done, especially where the flexible working is carried out, for example, at home.
I think those are the main grounds that are likely to lead to an employers’ mistrust of their workforce working flexibly.
Ksenia: I agree that trust is a key issue. In a recent interview an employee who just occasionally worked from home described the rules in place, and in that particular case, if you worked from home, you had to bring your ‘homework’ in the next day and show your line manager. While that helped with monitoring performance, such a controlling practice did not engender a trusting relationship between the employee and the line manager.
Part of the problem is with how we measure performance in the workplace. Uptake of flexible working is partly stalled by the problems with how you arrange measurement of performance. Most often performance is measured by the number of hours people spend at work, rather than by output, where it actually doesn’t matter how long or where you’ve spent this time as long as you’ve done your job.
Philip: I think it depends on the nature of the work. If you work in sales, for example, and you’re achieving the targets and because you’re very good at selling you could condense that into one hour of work, I think that’s right. An employer is not going to be overly concerned if you’re meeting your targets. It does depend on the nature of the work that you’re doing and whether it is generally based on hours rather than achievements.
Zofia: Mistrust of employees generally comes out of a poor employment relationship between the employer and the employee, and is especially prevalent if one of the parties has behaved in a way that leads the other to mistrust them (e.g. unfair appraisal, unproductive at work etc.).
One can question whether mistrust of an employee is an excuse because there is not a good employment relationship in the first place, and that not seeing an employee physically at work may weaken this further.
The issue is, will refusing the right to request make the situation worse, and what does an employee have to do to show the organisation that they can be trusted? If there is good people management in an organisation, then an issue of trust should not occur, and this includes employee autonomy.
There is also the question of, what are employers not trustful of? That the employee will not work their hours or that they will not complete their work? This boils down to an issue over hours vs outcomes and outputs. If an employee is still able to complete their work targets at the acceptable level, then does it matter when/where the employee works.
Additionally, research has suggested that employers who have offered temporary employment have shown increased productivity, with employees still meeting their deadlines, improved employee loyalty, and the fact that organisations have displayed an element of trust in employees by allowing them to work from home was rewarded as employee tenure increased.
Alex: Issues of control are always central to the employment relationship. In a way you’re always going to have these issues of trust of the workers. But there are employers who feel they can trust their employees when they have a high level of commitment. In my own workplace, the university, academics have a lot of autonomy over their working time and their work but on the whole they work very hard and get on with their work and can be trusted to get on.
Ultimately, it also comes down to the right to request flexible working being seen as a right and employers then have to provide a sound business reason to deny it. I don’t think having a feeling that you don’t trust your workers is a good enough business reason.
I think rather the employers need to be thinking about how they can create more of a trusting relationship because there are definite benefits in terms of productivity, commitment and lower turnover for employers.
Philip: It also depends on how long someone has worked for the organisation. If somebody’s got a track record of having worked for the employer for many years, I think, an employer is much more likely to say “Fine, because we know that you’re a worker and not a shirker and we’ll support you in that.” But if it is someone who’s been employed for six months who asks for flexible working, the employer might be more guarded because they really don’t have a track record in that respect.
Alex: I can see where that would be an issue, but you have academic staff and research staff who are on very short-term contracts or even zero-hour contracts and yet still can be trusted to get on with their own work.
Philip: I think that goes back to the initial point about the nature of the role. Research work, for example, lends itself to being carried out wherever you are, but if you’re doing sales and you need to be monitored in relation to that work then it’s going to be quite a bit of time before an employer’s going to trust somebody to carry out that at home. Certainly it is not likely to be that straightforward after a few months’ employment.
Will a larger implementation of flexible working will change its perception?
Philip: There is definitely a culture of change sweeping through a lot of businesses because of the technology that is widely available. Technology allows remote working in a lot of sectors and a lot of modern employers have embraced this where they can, because they’ve seen this can be beneficial for both the employer and employee. 20 years ago you couldn’t have the same amount of remote working because the technology didn’t exist to support it.
Ksenia: Previously the major barriers were around the perception that flexible working is just for parents and in particular for working mothers, so a very specific type of flexible working was on offer. The more people who are not parents engage in flexible working due to the advantages of technology, the more of the cultural change we will see.
If you think about it, flexible working is also about going to the gym in your lunch hour. It’s not just changing your working hours from 9-5 to 8:30-4:30.
Philip: Another point to highlight in terms of cultural change is that flexible working also includes part-time working and before the new legislation came into force last year, which allowed all employees with at least 26 weeks service to apply for flexible working, a high number of businesses did offer some form of flexible working. This is mainly because of working mothers, but also part-time workers. There are a lot of part-time workers in the UK and that is considered to be flexible working as well.
Alex: It is really important to make this distinction between employee-driven and employer-driver or employee-friendly and employer-friendly flexible working because there are certain forms of flexible working – like zero-hour contracts – where the employers have all the control over the changes to peoples’ hours and that can cause a huge number of problems around insecurity and anxiety.
I’m a bit more pessimistic about the cultural change. I think generally institutions are quite resistant to change and that’s why there’s not been as much uptake of flexible working as maybe we would like.
Philip: When you look at the make-up of the UK industry; we are mainly a service-based economy at the moment. Technology has a significant part in the make up of the service industry and obviously any office that has a digital make up is able to roll into a flexible working arrangement very quickly.
In my office, for example, we all work with cloud-based technology. We can work from anywhere, any part of the world in fact, and our files and our emails and even the phone are internet-based. So I do think technology is a key here and if that can be rolled out to those dinosaur companies that are still living in the dark ages as far as technologies are concerned, I think we’re going to see a lot more flexible working in the future.
Zofia: Culture change may be a barrier to the implementation of the legislation, with a recent survey reporting that only 12% of workers believe that the organisation will embrace the flexible work culture in 2015. However, it must be remembered that many organisations were already providing flexible work for those with families or those who were carers; so there has already been a culture for flexibility, it now just needs to be widened so all recognise what they are entitled to.
However, you do have to question whether changing the culture of an organisation is a good or a bad thing. BIS actually hoped that this change in legislation would change an organisation’s culture so that they would enhance the productivity of their workers, improve employee work-life balance – which could also have positive implications for an individual’s health and wellbeing – and develop trust between the employee and employer, especially if the flexible working pattern is fruitful.
There are additional questions regarding whether this legislation will improve the culture of presenteeism – where employees feel that they have to come into work even when they are not feeling well, because organisations do not or have not previously been flexible in these situations. Will acknowledging that flexible work is now acceptable to everyone mean that presenteeism will also reduce?
This will only happen if once again the argument between hours worked and outputs produced will also be changed, so that individuals, although working from home do not feel compelled to work all hours just because their smartphone technology allows them to do so.
If there does need to be a change of culture, this will be hard to do, and should be partnered with the education of organisations regarding how flexible working could be beneficial to an organisation if implemented and monitored appropriately, meaning that there will be gains to both the organisation and the employee.
Ksenia: There is another cultural aspect that we perhaps haven’t considered yet, which is what happens to people who do choose to work flexibly and are being overlooked for promotion or people not being allocated to a particular job because they’re not in the sight of the manager who’s making those decisions. That adds an important consideration for an employee who might be deterred from taking up some of these flexible options because of the risk of missing out on some of the workplace opportunities.
Philip: That can happen and that’s something that needs to be taken into account. Those employees who work flexibly are potentially outside the radar of promotion because they’re never in the office.
Alex: When we see the existing technological possibilities to overcome these barriers but also the lost opportunities that people might face from working at home or not even being allowed to in the first place, I do think there needs to be more of a culture of change. The only way to do that is for this to become normalised; that means we need to empower workers who want to work flexibly to be able to do that. The unions probably have an important role to play in this, in making people feel like they have the confidence that they can do it and that they’ll be protected from any kind of negative implications of doing so.
Philip: The right is to request flexible working, not to have it.
Alex: Yes, the law, as it stands, is very positive but the problem is whether actually it’s being practiced. I think a lot of workers are not going to want to try and push to work flexibly or even get to ask in the first place and the employer isn’t going to provide a proper business case, the employers are just going to say no. We need to empower workers to feel like they can request to work flexibly.
Training is also important because many managers, especially if they’re male, might not recognise how important having this flexibility is and the difference it can make to people’s lives and so might just think, ‘oh, they just want this on a whim rather than it actually is something that could be very beneficial for productivity as well’.
Flexible working brings advantages to the economy, such as reducing commuting costs and carbon footprints and increased wellbeing. However, these benefits are seen as good for employees and not for efficiency in the strictest sense. What is the main benefit for a commercial organisation?
Alex: I think that job satisfaction benefiting productivity and turnover is pretty well established, so if these flexible working practices increase job satisfaction then we can expect a direct benefit for the firms themselves, and that’s the reason why many firms are introducing these policies in the first place.
Ksenia: Real estate is one of the easiest examples of short-term benefit. The savings on property management are one of the reasons some employers may choose to go for flexible working. CIPD did a case study of Deloitte, which has made its property management more efficient by offering flexible working to its staff.
Another good example is the flexibility some employers put in place during the London Olympic Games. Many companies managed to maintain their working schedules just by allowing people to work from home, as they realised that travel would be quite challenging and some of the work might have been disrupted during busy times. By introducing flexible working, or by allowing people to work from home, they managed to keep working.
Alex already mentioned that employee satisfaction will definitely benefit productivity, but also staff retention may also improve organisational performance in an indirect way through brand and reputation. Employees who are satisfied with the way they work or with their jobs are more likely to talk about it externally and therefore promote the organisation as a good employer.
Philip: That is true, especially for the younger workforce – the Generation Y workforce. Research shows that for such employees, having a good work/life balance is of extreme importance and they actively are looking for positions in companies that do offer and promote flexible working. That’s by far their preference because, of course, they’re all tech-savvy and they can bring to the table the ability to work flexibly. Flexible working is certainly something the younger generation is actively looking for in the job market.
Zofia: Flexible working can have many benefits – those usually cited include improved productivity through allowing staff to work in locations that better suit the nature of their work, improvements in service level for both internal and external clients because agility can better meet the challenges of fluctuating and often unpredictable workloads. Flexibility can also lead to enhanced creativity by providing staff with more time to reflect on projects and bring new ideas. Employee morale is also seen as a benefit, as well as raising levels of employer loyalty. A recent survey shows that 62% of employees are more content with their work as they have improved flexibility in their working hours – many stated that it highlighted the importance of the role of trust.
The increase in flexible employment also means that employers can keep their overheads down, and it can help to satisfy customer expectations (some companies are becoming more 24/7). In essence, flexible work, if implemented correctly, can make the workforce more efficient without having a massive increase to the cost base.
Flexible working offers many possibilities for parents, older workers, carers, etc who otherwise could not work. Is it appropriate to work flexibly if you are a young manager trying to get up the professional ladder?
Ksenia: As Philip mentioned before there are benefits to flexible working for young people. CIPD research shows that career expectations are changing, and young people sometimes prefer better work/life balance to fast progression in their career. I think the question around availability of flexible working to people interested in progression is more to do with how it is implemented, how jobs are designed and how responsibilities are assigned. Flexible working patterns don’t have to be a barrier to progression on all these occasions if there is an open and trusting conversation between the employee and the line manager about how work is going to be allocated, how it’s going to be measured, how you are going to be accountable for what you do when you’re not in the office.
Zofia: There are now more younger employees that want flexible working and career expectations are changing, so flexible employment might be becoming more popular in order to employ and retain up-and-coming talent, with flexible working is sometimes viewed as more important than a pay rise. Flexible working can boost employment for young people, as it could enable them to adjust their hours to accommodate further training and development.
It could be argued that younger employees are pushing the flexible work agenda as much as those who have parental responsibilities. A reason for this is that their social and business networks are becoming more intertwined and having a fixed office location and fixed working hours can be a source of frustration. Young people are speaking with their feet, and so employers are beginning to offer flexible working initiatives so they can attract better candidates. A Samsung survey on flexible working highlighted that 23% of younger employees would look for alternative employment if they did not get flexibility in their companies.
Flexible work could also help and be beneficial for workers who are currently approaching retirement age. This is going to become an increasingly prevalent issue as the working population is getting older. So organisations can use flexible working as a means to keep older workers in employment, so right to request may then become more popular within older generations as well.
Alex: Making career progression and flexible working compatible could become a problem and we probably need to provide more protection and training. Maybe we need more statutory oversight of what’s actually going on but also potentially expanding the remit of employment tribunals to look particularly at discrimination or retaliation coming as a consequence of people working flexibly. It comes down to the need of a cultural change so managers understand and this becomes a norm.
Philip: I would agree with that. It’s come to my attention that there’s lot of younger professionals, younger managers that are teaching the older managers a thing or two about flexible working and technology. So in terms of fast progression for the younger workforce, it’s the older workforce and the older more-established managers that are not so familiar with remote working and technology who are listening to the younger folks. Potentially, there are good opportunities for the younger working population to fast-track their career if they know what they’re doing in terms of the technology and flexible working.
Do you have any knowledge of companies that have received too many requests and have had to prioritise, or about the number of people who have been denied a request?
Ksenia: I don’t have any specific data, however, we do know that operational pressure is the top barrier when it comes to flexible working. So employers are saying to us ‘We need people in the office’, which is perfectly reasonable. I would just recommend that the managers ask themselves whether work can be done elsewhere and if the employee feels it will be beneficial.
Philip: This comes back to employers having a clear policy as to how they’re going to reconcile the various competing requests for flexible working. They have to be very careful because if they don’t get it right then they could be potentially discriminating against one part of the workforce.
For example, if they’re constantly granting requests to the people who’ve got childcare responsibilities or carers, if they’re favouring them as opposed to non-carers then that could be discriminatory, or vice versa. Employers do have to be very careful and to look at each case objectively and if they can’t allow flexible working for any particular individual it has to fall within one of the eight business reasons that are set out in the ACAS guidance as to why they’re not allowing that person to work flexibly.
Alex: There are difficulties around that issue because you could imagine a situation where different employees are competing against each other. It comes down to having a proper policy that recognises the process is fair and transparent so everybody understands how it’s working.
Zofia: I don’t think organisations would want to highlight the fact that they have had to refuse requests for flexible working, especially if what they classed as ‘reasonable reasons for refusing’ the request is not considered reasonable. Organisations may wish to have a trial period for the request to see how it works in practice, or see what alternative they can offer if they do refuse a request.
Obviously, there may be cases where there is a pressure to prioritise requests in one department or team, and at the moment there are no guidelines for this. Employers don’t have to make value judgements, and as many organisations do not require their employees to explain the reason they are requesting flexible work, employers have to be wary about possible cases of discrimination and the legislative risks associated with this. Requests do have to be treated carefully and even-handedly to avoid discrimination claims, and sometimes difficult judgement calls will have to be made.
Some employers argue they would like to apply flexible working but have difficulties in drawing up a policy and funding. What differences are there between larger and smaller organisations in the way they apply it?
Philip: I don’t think it’s too difficult for employers to set up a flexible working policy. ACAS has actually produced guidance and a booklet for employers to show them how it should be done. It’s very clear and concise.
Naturally, the smaller firms will always have less resources than their larger counterparts, and therefore they might be more reluctant to implement further polices they may suspiciously view as red tape, because that’s always a complaint of smaller employers. If small companies could see it would benefit their business and make them productive, then they might not be so scared off.
Ksenia: In addition to ACAS guidelines, CIPD provides information for employers, factsheets and guides on how to set up a flexible working policy. I agree that small employers may be in a slightly more difficult position if they do not have dedicated HR resources to set up a formal policy. However, in a survey of small and large employers, SMEs were more likely to tell us they don’t have any barriers to offering flexible working, and they’re the ones that seem to have fewer issues with negative manager attitudes. This is perhaps due to the fact SMEs have less formal work environments and they don’t seem to have the same issues with trust and control that some larger organisations do.
Philip: In smaller organisation there’s less hierarchy, you haven’t got a chain of eight managers like you would have, for example, in large banks or blue chip companies where everyone’s got their competing agenda.
Another point I would highlight again is the law applying to working flexibly is the right is ‘to ask’, it’s not the right ‘to have’ flexible working. The employers basically have got carte blanche to reject. There are eight business reasons set out for employers to use to reject a petition but it’s not too difficult for an employer to say, ‘sorry, it’s not for us’ and come up with an economical business reason.
Alex: Even though it’s not so difficult for employers to come up with reasons, I think even the fact that they’re being asked can then lead them to start thinking about employees’ needs and their work/life balance and hopefully they won’t just automatically reject it as it becomes more normalised. It will lead them to engage in a discussion with the employees about what their needs are.
Philip: I agree with you entirely because a happy and productive workforce will lead to a successful business. There’s been numerous studies in that respect and therefore why would you not acquiesce if you possibly can to somebody who’s applying to work flexibly? At the end of the day you want to keep your staff happy and if you’re just going to reject it for no good reason at all, simply because it’s not familiar territory for you, that’s not a great business model.
Zofia: Before the legislation was introduced, some SMEs reported scepticism regarding whether the legislation would actually be beneficial for them and have a positive effect on their business operations. Only 43% of SME owners supported the legislation (and thus it could be argued that they would then have problems with trying to implement it), only 11% said they thought that it would be beneficial to them, and 46% said they currently had no flexible working policy in place. So for any changes to happen, a change in the culture and attitudes of flexible employment is necessary.
SMEs are anxious about the added administrative pressures the legislation brings, as well as coping with the negative dynamics for the team if a request is rejected, which migh have bigger impact for productivity in smaller teams than within a larger organisation. Research conducted last year by Sage UK found that one in 10 SME owners were unaware that there had even been a change to the legislation and 40% were concerned about the costs of implementation.
There have been arguments that SMEs could implement a trial period of the request if they are unsure what the implications of the change would be for them, or if they do not think the request is suitable in the form applied for, then to suggest an alternative that may still work, and will reduce the potential negative impact on productivity if a request is rejected.
However, some small organisations are using flexible working as a way to lure potential suitable candidates into the workplace; they cannot offer the larger salaries or other employee benefits that larger organisations can, but they can provide flexibility, which could be seen as a massive recruitment opportunity, especially for the younger generation.
Ksenia: I would like to reiterate that uptake of flexible working is not just about availability of the options. Uptake and effective use of flexible working is impacted by many other organisational processes and it may be difficult, particularly for large organisations, to align all of their systems.
When you think about flexible working and barriers to flexible working mentioned in this conversation, we’ve talked about job design, performance management, how performance is measured, and even training for line managers. Unless all those systems are in check you’re bound to have some sort of gaps in flexible working arrangements. So it’s quite important to consider the context in which flexible working exists as well as the practice itself.
Alex: A fruitful way forward is for health and safety practice to start considering issues around scheduling and stress. We can see pretty clearly that issues around work/life balance, but also scheduling, especially employer-driven scheduling, clearly causes stress. If the health and safety reps and other mechanisms start thinking about scheduling and working time problems that would be a positive way forward to try and increase the awareness of flexible working possibilities in the workplace.
Zofia: Before ending I would like to mention how a person’s right to request flexible work may have an impact on the team they work in, and how any resulting changes to role or workload can be fairly managed. Other team members may react negatively if they feel that someone is offered preferential treatment, or if their workload or role changes as a result of somebody else’s right to request. Concerns about this ‘distributive injustice’ have not yet been discussed but could affect employee morale.
It is also important to clarify that flexible work is not synonymous with home working – there is a risk this can become the case, but the two are different. And a final issue is how employers ensure that health, safety and wellbeing measures continue to be applied under the new flexibility legislation. We need to keep discussing this.
By Anna Ryland, British Safety Council on 27 May 2019
Some of Britain’s most eminent thought leaders and campaigners took part in the British Safety Council’s roundtable debate on workplace wellbeing held in March. They examined and challenged wellbeing concepts and practices.
By Iris Cepero on 07 February 2017
A group of experts discuss work-related respiratory disease in the first of a two-part article.