Matching needs: flexible working as a force for positive change? - a #UHR23 blog from Mills & Reeve

25 April 2023      Martin Higgs, AUDE Communications and Campaigns Manager

There is plenty of evidence that imaginative deployment of flexible working can be a powerful tool to boost recruitment and retention. But it would be wrong to deny that it can often involve striking a difficult balance between the operational requirements of the institution and the personal needs of the employee.

The possibility of competing priorities is well illustrated by two different pieces of legislation addressing workplace flexibility currently progressing through Parliament.

One measure – the Employment Relations (Flexible Working) Bill - aims to make flexible working “the default”. The Bill would streamline the statutory process of requesting more flexible working conditions and allow employees to make up to two requests a year. More importantly, the Government has committed to removing the six-month qualifying period so that it becomes a “day one” right.

The other measure starts from a worker’s desire for more predictable working conditions, where the employer wishes to retain flexibility over the timing or number of hours worked, or over the length of the engagement. The Workers (Predictable Terms and Conditions) Bill will introduce a new right to request more predictable terms and conditions. This was identified as an enemy of good working conditions by the Taylor Review of Modern Working Practices, and the Government’s 2018 Good Work Plan promised to address it. Unlike the flexible working regime, on which the procedural elements of this new right are modelled, it will extend to workers as well as employees, though there will be qualifying period in both cases. Separate provisions will confer similar rights on agency workers.

The treatment of fixed term workers will be of particular interest to HE institutions. As currently drafted, a worker engaged on a fixed term contract of up to 12 months’ duration would effectively have the right to request more “predictable” arrangements after a defined qualifying period (likely to be six months). This would give them the statutory right to request either a longer fixed term or a permanent contract.

Of course, a right to request is very different from a right to “have”. The grounds for refusal are broad, mirroring those currently available under the flexible working regime. Those likely to be relevant in this scenario include “detrimental effect on ability to meet customer demand” and “detrimental impact on other aspects of the employer’s business”. However, giving employees on short-term fixed term contracts a right to a formal review would concentrate minds when assessing whether a particular post should be advertised as fixed term or permanent.

These new measures illuminate key differences between employee and employer led flexibilities and are likely to pose new challenges for HE institutions on recruitment and retention. In some situations there may be a sweet spot where both sets of interests are aligned, but in others it may be more of a balancing exercise, involving compromises on both sides. In those cases, it may be possible to square the circle by re-designing the post, or by re-imagining flexibility beyond the traditional polarities of full time/part time, office/home or fixed/variable hours.

At present we do not know when this legislation is likely to become law. It is possible that it will not be brought into effect prior to the next election, but it is clear that measures of this nature enjoy cross-party support. This is evidence that nudging employers away from their preferred model of job design is seen as a desirable policy aim. The reality is more nuanced, but in today’s competitive labour market HE institutions will be under pressure to go further in meeting workers’ expectations.

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