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Flexible work a right?
...Not quite

We review the pros and cons of the "April Laws" 2003

DTI Poster - courtesy of VisMedia
Government PR for the new regulations targets the work/guilt balance

 

The "right to request flexible work" is now established in UK law.  For some parents, anyway.

Here at Flexibility we give the government's initiative two cheers, and say why they'll have to do more to get the third one.

In accompanying articles we summarise the new regulation, and provide some guidance to companies about what they ought to do to prepare themselves to respond to employee requests.

 

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 guidance to companies about what they ought to do to prepare themselves to respond to employee requests.

Two cheers

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 work basis. 

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 whole workforce.

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 less demanding!)

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 horse?

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 flexible work.

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 of staff."

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 the initiative.

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 life.

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 establish a 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.

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