The government is yet to respond to its consultation on flexible working. Anthony Purvis looks at existing legislation and what should be done to make things easier for working parents.
In workplaces around the country, we see a familiar game playing out between working parents and their employers.
It goes something like this: some time after the miracle of birth happens the parent is faced with the prospect of either returning to work full-time and paying eye-watering childcare costs or submitting a flexible working request in the hope that both work and family life can continue.
The request is likely to be to work different days or hours, or to work from home for part or all of the week. The employee tries to arrange childcare in a system beset by nursery closures and waiting lists, while often coming under pressure to commit financially to a provider before their employer’s decision is known.
The request is considered and then quite easily rejected, with the result that the parent does not return to work at all and their experience and contribution to the economy are lost.
Flexible working legislation
Even if a new working pattern is secured and then childcare arrangements change or vanish – which we are seeing increasingly as many childcare providers close – the employee is limited to only one request every 12 months and is therefore restricted in accessing any further flexibility that might be needed.
The trouble is that the outcome is stacked so heavily in favour of the employer. The current law ensures that the game is at least played because businesses must consider requests in a “reasonable manner” which in essence means meeting to discuss the expected benefits and disadvantages before a decision is made.
Sometimes this works admirably. I recall one manager giving short shrift to a flexible working request initially only to agree to it wholeheartedly after talking it through with their employee and understanding the benefits.
It was beautiful to see the law working, but similar moments of epiphany are rare. If an employer wants to say no, they can do so by pointing to one of eight reasons: summarised as extra costs, undue pressure on colleagues or a negative impact on customers or performance.
The success of pandemic-enforced flexible working has made it more difficult to say no to requests, but it’s still straightforward to reject an application.
Even though a sex discrimination claim can offer recourse to an aggrieved mother (as women typically have more childcare responsibilities than men), it comes with great uncertainty and ultimately the prospect of compensation months or even years later, rather than the job they wanted to keep.
Redundancy or resignation
A more cynical view is that the current regime allows employers too much rein to remove unwanted employees who also happen to be parents.
For example, if the employer has performance concerns about the individual or simply prefers the person covering maternity or paternity leave then saying no to flexible working can result in a resignation and therefore the employer avoids the need to manage any capability issues.
What is the answer? Cheaper or subsidised and more widespread childcare is certainly part of it, but what about the legal framework?
Despite my misgivings about the current system, it’s hard to make the case for restricting an employer’s discretion much further. The truth is that only an employer, at least after talking it through and thinking about it carefully, knows whether or not a working pattern will work for a particular job and its business.
Indeed, much of employment law quite rightly takes a light touch approach, choosing only to hold companies liable if something is manifestly unfair, unreasonable or discriminatory.
Flexible work consultation
At the end of last year, the government ran a consultation called ‘Making flexible working the default’ but it focused on only minor changes to the rules and, so far, no outcome or next steps have been published.
Proposals included allowing all employees to make requests (at present you must have six months’ service, which is not a high or relevant hurdle in many cases but removing it would encourage the consideration of flexible working at the recruitment stage), tinkering with the permissible reasons for saying no and requiring an employer to suggest alternatives when rejecting.
However, two proposals appeared to offer more. The first is to allow more than one request a year, which would deal with the problem caused by a sudden change of circumstances.
A more cynical view is that the current regime allows employers too much rein to remove unwanted employees who also happen to be parents
The second is to require employers with at least 250 employees to publish their flexible working policies. Publishing information is to be welcomed but what is a policy going to say other than “we don’t rule it out and we don’t rule it in?”
Larger employers have been required to publish their gender pay gap for a few years now, which is proof that placing a spotlight on an issue can drive improvements or that “what gets measured gets managed”.
Reporting on progress
Crucially, and even though there is no legal requirement for it, nearly all reporting employers provide a narrative to the raw data, which typically sets out why the gap is as it is and what is being done to address it.
So why not introduce an obligation to report on how much flexibility is allowed by a business in practice, at least for those who employ 250 or more? It would require employers to set out the percentage of requests which have been accepted and rejected.
Potential employees can then review the data – and the accompanying explanation – when deciding whether or not to apply for a job or try a competitor.
As with the gender pay gap, we should also find that press attention is generated every year for those who perform well and those who do not. It would retain an appropriate limitation on the law’s intervention in how a business structures its workforce while ensuring that employers devote more time and energy to seeing if they can get to “yes”.
Without change, there will continue to be only one winner in a game that is weighted too heavily against new parents, with the result that valuable skilled workers are lost.