This morning, Government has launched proposals to change the law to allow employees to make a flexible working request from their first day in a job – whether it be to spend a part of the week working from home, or to adopt flexible working hours to enable them to manage health conditions, childcare responsibilities or balance work with other family activities.

Recent Work Foundation research found that the shift to remote working through the pandemic has led many employers to re-think the flexibility they offer their staff.

Recognising the potential for reaching a broader talent pool and retaining skilled workers, some organisations are already open to discussing flexibility with candidates and new starters. But up to now, the legal Right to Request Flexible Working framework has only offered protection to employees who had worked with their employer for six months or more. This has reinforced the idea that flexibility is a perk that employees can earn through demonstrating they’re reliable, rather than a core component of a good quality job.

In practice, it meant that employers were not legally obliged to respond to requests made by new starters. While disabled workers and people with health conditions could be entitled to flexibility on starting their role as a reasonable adjustment under the Equality Act 2010, this would only be possible if they were willing to identify as disabled during the requirement or onboarding process – a gamble many candidates don’t feel able to take.

Up to now, employers had a window of three months to respond to requests, meaning an employee needing flexible working arrangement might have to wait nine months after starting a job before it is agreed, potentially locking some workers out of jobs altogether.

If the proposals announced today are introduced, that will change. Employees would have a legal right to formally request flexible working from the day their join an organisation, and employers may be required to respond to that request sooner. The consultation is also considering the potential for requiring employers to suggest alternative arrangements in response to a flexible working request, with a view to enabling conversations about the types of flexibility that may be possible.

But crucially, these proposals wouldn’t guarantee any workers access to flexible working: the framework would remain a right to request a flexible working pattern, but not a right to have one. Employers could refuse requests, with employees having limited scope to challenge decisions.

There is a risk that shifting to a day one right to request could increase the scope for discrimination during recruitment and onboarding, with candidates expressing a preference for remote working potentially not being shortlisted, or facing additional scrutiny during their probationary period.

Within the consultation document, Government expresses an intention to make flexible working “part of workplace DNA”. In practice, realising that ambition will require a broader range of legislative, regulatory and cultural changes beyond bringing forward the right to request.

Many employers are already taking a more proactive approach, specifying the types of flexible work that could be available within a role through job adverts. This will help break down barriers to employment for individuals who need flexibility in order to work, and could open up conversations about flexible work for existing employees.

While today’s proposals represent welcome recognition of the benefits that flexible working offers both workers and employees, bolder reforms will be needed to reflect the changes already taking place in our working lives.

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