Flexibility in the workplace has developed at a rate of knots in the last few years – as we all know! HR leaders have been behind much of the drive for increased flexibility for employees and have seen first hand the many benefits that flexible options can bring.

From greater talent pools to better productivity, the evidence continues to mount and HR leaders are becoming the most vocal champions of a changing workplace norm.

Towards the end of 2022, the Government proposed to write into law the much-anticipated right for employees to request flexible working from day one. This piece of legislation was lauded as a step in the right direction for creating truly flexible workplaces – but many argue it doesn’t even come close to going far enough.

What will change under the new law?
The proposed law change states that all employees can request flexible working from the very first day of their employment.

Currently, an employee must be in employment for at least 26 weeks in order to make a flexible working request, and they can’t have made such a request within the last 12 months.

In effect, once written into law this change means that millions more people who are newly employed in roles can request to work flexibly – for example, part time, compressed hours, job-sharing or remote location arrangements.

It’s not the only change. Employees will also be able to make two requests in any 12-month period, with employers required to respond within two months – as opposed to three months currently.

And, importantly, employers must discuss alternative options before they reject a flexible working request, potentially opening the door to new ways of flexible working that haven’t yet been considered.

The purpose of a flexible working request is to allow the employee to change their terms and conditions in one (or more than one) of the following ways:

• how many hours they are required to work;
• when they are required to work, and/or
• where, as between their home and their employer’s place of business, that work is done.

In practice this can include requests for job sharing and flexitime, as well as compressed, annualised or staggered hours.

Why day one?
The argument for flexible requests from day one is that it empowers workers to have greater say over when, where and how they work. The idea is that this will lead to a happier and more productive workforce – better for both employer and employee.

Currently, the path to flexibility is fairly complex and the thinking behind the new law is that it will pave the way for greater requests and an increased number of approved flexible working patterns.

By enshrining this right in law, employees will be protected from penalisation as a result of flexible working requests – thus encouraging more individuals to make these requests early on in their employment.

What is the criticism?
The main issue with the proposed legislation lies in its reach.

By protecting workers from day one, it does of course encourage greater flexibility requests and in theory should help more people find flexibility in their employment.

The problem comes when we look at the likelihood of flexible requests being accepted. If a candidate has accepted a role which is full time, office based and typical 9 to 5 hours, then on their first day suggest that this pattern is inappropriate for their lifestyle and that they would prefer compressed hours, an employer would certainly question the sudden need for flexibility.

The candidate in this scenario has accepted a job knowing full well what its requirements are; what would have changed between job offer and the commencement of employment that would generate an acceptable reason for flexibility?

It’s therefore likely in this scenario that the request would be denied. So, while the employee is free to make the request and cannot be penalised for doing so, they are very unlikely to find themselves in a flexible role – thus missing the very point of the new legislation which is to support employees to work how and when they choose.

To many, the legislation is something of a virtue signal that falls short of delivering effective change.

What is needed?
What is really needed is pre-employment protection. Candidates should be safe to request flexible arrangements from their first conversations with a potential employer without this penalising their application process. In this way, a candidate can state from the first conversation that he or she would seek a job-share or compressed hours, giving the employer chance to consider how this role can best be filled flexibly before any employment offer is made.

It’s more likely in this scenario that a flexible role can be created, keeping the talent pool wide open and helping both employer and potential employee find the best solution.

To effect real change in the way flexible working is mandated by law, the Government must look at offering protection before any employment commences.

What does it all mean for HR?
HR leaders are pros at understanding and adapting to new legislation! With the advice of external counsel, it’s important that HR teams adapt their internal policies and update training for managers so that everyone understands the new rights employees have regarding flexible working.

The forward-looking HR team may also want to consider the ramifications of offering a flexible-friendly recruitment process where candidates can request working patterns that suit them in an open and safe environment. While not mandated by law, this approach could offer a leading edge over competitors and help your business attract greater pools of talent to each vacancy.

What are the timescales?
While no timescales have yet been announced, it would be prudent to assume that these changes will be implemented relatively quickly and it always pays to be on the front foot! Therefore, HR teams should invest time in updating their processes as soon as they can.

HR pros should cross reference their policies and training, and ensure that explicit communication takes place with all hiring managers to avoid anything slipping through the net.