The new regulations that come
into force in April mark a significant step forward for flexible
work in the UK, and for moves to support improved work-life
balance. The basic right in question, is a right for
parents of children under 6 (or under 18 for parents of disabled
children) to request flexible work.
At Flexibility, of
course, we welcome changes that we've been promoting for over a
decade. In accompanying articles, we
summarise the changes, and provide some
companies about what they ought to do to prepare themselves to
respond to employee requests.
So three cheers for the government? Maybe not.
But we can manage two cheers. This is because we do have some
reservations about the new "right".
In essence, there are areas
of vagueness and inconsistency that mean on the one hand the
achievements may be limited, and on the other that there is
considerable scope for disputes - employment tribunals may see a
flood of cases arising.
The "right" is a "right to
request", not a "right to flexible work". This difference
already seems to be causing confusion in some quarters. An
absolute right to flexible work would probably be unworkable, as
many types of work are less amenable to being done on a flexible
But the right to request
means that there will be a multitude of interpretations, and
many of those interpretations will be ad hoc responses, giving
rise to inconsistencies, grievances and probably also some very
poor implementations. Employers will give varying responses, as
will arbitration panels and employment tribunals, inevitably
giving rise to diverse and inconsistent case law.
The problem is that there is
no clear framework to establish what it's reasonable to expect,
and no clear business logic as to why the
regulations are only applicable to some parents rather than the
It's for the children...
The connection between flexible work and the
quest for greater work-life balance is now well established. But
connecting the right to request flexible work solely with people
who care for young or disabled children is both arbitrary and
clearly discriminatory against childless employees and parents of
older children (who, let's face it, are for the most part no
In some cases it is also hard to
see why a form of flexible working is necessarily more child
friendly. For example, the Department for Trade and
Industry (DTI) in their guidance cite a case of
a parent getting approval to work a compressed working week,
meaning 10 hours a day Monday to Thursday, with Fridays off.
Working 10-hour days for most of the week seems pretty much
guaranteed to mean that you'll see less of your children,
unless you wake them up when you come in.
In particular circumstances
flexible working is often a more child-friendly option. But interestingly,
under the new rules that's for the employee to decide, not the employer. The
employer must confine himself to evaluating the impact on the
business, and not look at the balance of benefits. The
employer cannot argue that the new working arrangements will not
improve the employee's work-life balance.
One interesting facet to the
new rules is that once implemented, the change to working
practices is permanent. In time you may no longer have
the childcare circumstances that were the basis of the request
to work flexibly, but your right to work flexibly remains.
But one wonders about the
situation where someone applies for, say, a compressed working
week, and spends their Friday not in caring for children, but
doing a window-cleaning round, or hang-gliding, or being a
school governor - or whatever. The right, once established,
cannot be revoked. And why should it be?
Halfway house or Trojan
The government has accepted
the argument that flexible working is good for business. It
supports and promotes flexibility through a range of DTI
publications and through the Work-Life Balance campaign. But it
has stopped short of instituting a general right to request
While convinced of the moral
case for wider flexibility, the government is seeking to use the
framework of parental rights legislation to achieve a more
limited end. These new rules are what employers fear, the thin
end of a wedge intended to bring about more radical change. To
mix our metaphors, the genie is out of the bottle now, the Trojan
horse has made it into the city. Further change will surely
come, albeit in a haphazard way.
The government would like
through these new regulations to see the barriers to flexible
work being brought down. In due course, they hope companies will
allow flexible work for people other than parents.
So why not go for the more
radical change in the first place? The Chartered Institute for
Personnel and Development (CIPD) has called for the right to
request flexible work to be extended to all workers. According
to Mike Emmett, CIPD Employee Relations Adviser:
"The new law should not
present serious problems to employers. It is a declaration of
good practice and common sense.
"However, we would have liked to see the right extended to all
employees – not just those with young children. We would urge
organisations to go beyond compliance with the law, and to
respond positively wherever possible to employees’ requests for
flexible working. There are likely to be significant business
benefits if they do, including better recruitment and retention
We can only agree.
The myth of the empowered worker
Perhaps one of the greatest weaknesses of the
new regulations is that it relies on individual workers to take
This is in a long tradition of British
"permissive legislation". Central government likes to make rules
while putting the ball in someone else's court to enact them.
While this may be fine for enabling a local authority to take
action on something, it is another thing to expect individual
workers to have the power to do so.
For many individuals, it will be a very daunting
step to take, to 1) approach their boss in the first place, and
2) build a business case for particular changes to their working
Lying behind the legislation is a "myth of the
empowered worker", able to carve out his or her own niche and
career path in the labour market. For many people, real life
isn't like this.
One thing that could make a difference here, is
if employers were required to prepare policies for flexible work
which would be available to their staff, allowing staff (and
union advisors etc) access to flexible work patterns that were
appropriate to the nature of the business.
Employers can, on a voluntary basis, prepare
such policies in any event. It is good practice to
framework so that staff and managers alike know where they
stand, and to prevent much wasted time by considering every
request on an ad hoc basis.