UK Government changes to flexible working regulations fall short

Flexible work is a key mechanism that can enable women to better balance their working lives with their caring responsibilities. Enabling greater access to good quality flexible work can help organisations close their gender pay gap, and advance gender equality at a national level.

In 2021, the UK Government consulted on the potential extension of flexible working provisions. Last month, the Employment Relations (Flexible Working) Act 2023 was passed. Despite commitments to “make flexible working the default” and to deliver changes that will support families to balance work with caring, the new provisions likely are unlikely to do either.

Why women need flexible work

Women’s disproportionate responsibility for childcare and care and the lack of quality flexible working makes it difficult for them to balance work with family life. The most common form of flexible working, part-time work, is concentrated in low-paid, stereotypically female work, and there is a lack of good quality flexible work across the labour market. Better-paid jobs still tend to be full-time, perpetuating the ‘male-breadwinner’ model, and leaving them out of reach for those with caring roles. This helps to sustain the status quo, where women still do the majority of unpaid care in the home for children, older people and disabled people, which limits their access to well-paid employment, contributing to persistent economic inequality.

What has changed?

The lack of quality flexible working opportunities in the UK labour market sustains women’s concentration in low-paid, low-skilled work and results in women’s under-representation at management level and in senior grades.

The new flexible working act will do little to change this. Employees still only have a right to request flexible working, and employers still able to draw on the same list of broadly-defined ‘business reasons’ to reject requests. Furthermore, while the headline commitment to a day one right to request flexible working has been foregrounded in UK Government announcements, the Act doesn’t actually provide this. Instead, this is to be delivered through secondary legislation. It is expected that this change to the law will be made at the same time as the changes set out in the Act come into force, by July 2024.

Close the Gap welcomes the commitment to the day one right to request, however it is essential that the UK Government sets out a timetable for this to be brought in as soon as possible. Until then, women will still need to have been employed for 26 weeks before being entitled to make a request.  

The other changes enacted are:

• extending the number of flexible working requests an employee can make from one to two per year;
• shortening the time employers have to respond to requests from three months to two; and
• requiring employers to consult with the employee on the request before rejecting it, removing the requirement for the employee to set out a business case for their request.

While welcome, these changes do not address the substantive barriers faced by women in accessing quality flexible working, and are unlikely to significantly advance women’s equality in the workplace.

A right to request is not enough

A right to request alone will not deliver the change we need to see to expand the availability and use of flexible working. Indeed, around three in ten requests from employees seeking to access flexible work are turned down by their employer.

The right to request flexible working was extended to all employees in 2014. Prior to this, only employees with dependants under 18 had this right. In 2019, Close the Gap published research examining what type of employee works flexibly and how this has changed over time. This identified that the extension had very little impact on the uptake of flexible working, women’s access to flexible working specifically, and therefore gender equality at work more broadly.

Part-time work continues to be much more likely to be used by female parents than male parents, with little sign of change. This suggests the persistence of gender norms and stereotypes about men’s and women’s roles in mixed sex-households, and at work, which creates barriers to mothers increasing their hours and to fathers reducing their hours. There were increases in the use of home working and flexi-time, which are more equally used by men and women. However, there were also decreases in the use of term-time working and job sharing which is a cause for concern given that these are much more likely to be used by women.

This shows that legal provisions around the right to request flexible working are not fit for purpose, and are not meaningfully progressing women’s equality at work. Instead, we need a step change in workplace culture in order to make flexible working the default.

The change we need to see

The Act is a missed opportunity to tackle the well-evidenced barriers to flexible working. We need to see a requirement for employers to include flexible working in job adverts – in 2022 only 28% of jobs were advertised as flexible. This may make women hesitant to ask about working flexibly in fear that this will deter the employer from offering them the job, or put them off applying altogether.

More needs to be done to enable employers to think creatively about flexible working and job design, who works when, and where. We also need to see wider action to tackle the impact of negative line manager attitudes and cultural resistance to flexible working within many organisations. Too often this dictates whether a request will be rejected or approved, rather than genuine consideration of how flexible working can work for both the employee and the firm. Crucially, there remains no right of appeal for refused requests, leaving employees with nowhere to go if they feel their request has been declined unfairly.

The failure of the UK Government to deliver meaningful change is concerning. The new flexible working act leaves the gendered barriers to flexible working firmly intact, while failing to capitalise on the clear business benefits of enabling families to better balance their work and caring commitments.

The economic fallout of the pandemic is ongoing, and the intensifying cost of living crisis, the burden of which is falling most heavily on women’s shoulders, means the UK Government must go further, not stand still, on tackling gender inequality in the workplace. We urgently need to see a shift in both employment and wider economic policy that reflects the value of women’s work to the labour market and economy as a whole. Without this, economic recovery remains a distant prospect, with women left even further behind.