Employment Rights Act to support flexible working

An International Women’s Day special

This International Women’s Day, we want to highlight how the changing sentiments about flexible working are improving women’s chances for career progression – Is there more that can be done?

Below we share an informative article from Elspeth Fiona Drysdale who is a Solicitor at Anderson Strathern LLP. She takes us through how the Employment Rights Act is changing, and how things have developed to support more women through flexible working.

Women tend to bear a greater proportion of caring responsibilities for dependants, and this often has a detrimental effect on their careers. Research from 2022 showed that almost 60% of women said their caring responsibilities prevented them from applying for a new job or a promotion, in comparison to 20% of men feeling the same.

When we look back prior to the pandemic, there was a presumption towards office-based working in many sectors and requests for flexible working arrangements might typically have been used by women to facilitate them meeting these additional care needs. However, over the past couple of years, we have seen that workforces can be productive and effective when working with an increased degree of flexibility. We anticipate more positive shifts in the near future – important employment law changes are on the horizon, which might assist in a push towards greater rights to flexibility, leading to a more inclusive work environment for women and those who may need it.

The rights and obligations relating to flexible working requests are found in Part 8A of the Employment Rights Act 1996. In 2019, the Conservative Government’s manifesto stated that they encouraged flexible working and planned to consult on the issue of making this the default position, apart from where employers had good reason to encourage onsite working.

In 2021, consultation on this began with the proposals that would expand the right to make a flexible working request. The main proposed change was to have this be a day one right, as opposed to gaining this right after 26 weeks’ qualifying service. The government has confirmed legislative changes such as the right to make a flexible working request from day one. There are also proposed amendments to require employers to consult with an employee if they consider rejecting the request, permitting employees to make two request per year, reducing the decision period to two months, and removing the requirement for the employee to specify how the request might be facilitated (put in place?).

Though it’s positive to see a move towards enhancing the right to make flexible working requests, that seems to be only the start of the solution.

There is no proposal for a requirement to grant flexible working requests in any given situation. While that might be understandable in some sectors, the working environment in 2020 has shown us that a great many employers could reasonably be expected to offer flexibility as standard. If companies adopt progressive policy making, such as making flexible working a norm, this could be a driving force for change. With the proposed statutory provisions in place, there are still no guaranteed circumstances in which it will be granted. If it is granted, it can lead to perceptions that those who work flexibly aren’t achieving the same levels of productivity or seen as integral members of the team. By having flexibility enshrined in the working arrangements of a company, there is less opportunity for negative perceptions being attached to those who chose to work in these ways as it is the default position.

A move towards more flexibility would, hopefully, remove or at the very least relieve the potential for those with care needs to be excluded from the workplace in any number of ways but, most significantly, in relation to promotion opportunities.

Given that women are likely to have a greater need for flexibility due to caring responsibilities, making this the norm avoids flexible working arrangements being to their detriment, either directly or indirectly, where there are promotion opportunities available. It is so important for young women in industry to see other female colleagues succeed to imagine themselves doing the same – to have to “see it to be it” – having more women make the upward progression towards the boardroom can have a significant effect.

This would likely also help to attract female talent to a business. Where an applicant can see she will be valued with respect given to her need for flexibility, rather than in spite of it, this is likely to work in the favour of any employer seeking to get the best candidate. Any applicant wants to feel that they’ll have equal opportunities in their future workplace. Progressive policies on flexible working can be one way to demonstrate this to women in the market.

The changes to the legal position on flexible working arrangements can be considered a minimum requirement, or a launch pad. The differing requirements of workers for any number of reasons, including sex, should be legislated for as standard, rather than there being an expectation that everyone must work in the same way for the same value to be attached to their work. If we want to see the workplace become a truly equal environment, a presumption towards flexible working where possible is a good starting point but it is certainly not the end of the story.

Elspeth Fiona Drysdale


Anderson Strathern LLP

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One thought on “Employment Rights Act to support flexible working

  1. Loved it.
    That is what I think of it
    Great to see progress towards more inclusive and flexible working environments for women. The proposed changes to expand the right to make a flexible working request are a good starting point, but it’s important to strive for even more to truly create an equal workplace.


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