Third of employment contracts silent on flexible working, research shows

More than a third of working professionals say flexible working arrangements are not included in their employment contracts despite flexibility being a huge factor in attracting and retaining talent. Almost half - 47% - say would be tempted to change jobs if another employer was more transparent about the flexible working options it provided.

The research by recruitment firm Hays for People Management involved questioning 8,800 professionals and employers across the UK. It found 37% of workers say hybrid or remote working is not included in their employment contracts despite the majority, 84%, saying it is important to them for flexible working agreements to be a part of any contract for a new role.

Yvonne Smyth, director at Hays specialising in HR, told People Management that job candidates have come to expect flexible working which is now the norm rather than the exception. She says: “Therefore employers need to recognise that flexible working is fundamental and widely expected in today’s world of work and acknowledge that not setting out flexible working agreements in staff contracts is unsettling and could introduce an unnecessary element of concern and mistrust.”

Aftab Jussab, senior HR consultant at HR Solutions, argues that contractual assurance on hybrid working could help attract and retain diverse talent and those with caring responsibilities for whom flexible working is a must. He says: “For HR teams, implementing contractual hybrid working can benefit the organisation through improved diversity and inclusion and often it can increase productivity across teams.”

The research comes head of new flexible working rights expected next year. The Employment Relations (Flexible Working) Act 2023 received Royal Assent in July and when takes effect, at some point next year we expect, it will overhaul the existing regime to enable more requests for flexible working to be made, helping employees balance work and home life. Employees will be able to make 2 flexible working requests in any 12-month period, instead of the current one and to respond within 2 months instead of the current three. It will also become a day 1 right. 

The People Management article highlights the importance of flexible and hybrid working arrangements in attracting and retaining talent and the need for employers to be transparent about the availability of both. We agree. But there is an important difference between hybrid and flexible working which HR professionals and line managers need to understand. Earlier I caught up with Anne Sammon to discuss the difference and why it matters:

Anne Sammon: “So I think, first of all, it's really important to say that the two concepts are conceptually very different. Hybrid working is all about employers having flexibility and saying to employees we want you to work perhaps a minimum of this number of days in the office, or we're happy for you to work this number of days at home, and allowing a lot of flexibility whereas a flexible working request is a statutory right, although some employers will have extended the statutory right beyond just what the limits of the statute says, but a flexible working request is something that is almost set in stone, doesn't change, is forevermore and tends to be written very particularly from a legal perspective. So it tends to be things like, you have the right to work from home on a Wednesday, or a Thursday, whatever day it is. Contrast that to a flexible working policy, or a right to work from a hybrid perspective, and that will say something like you can work two days a week from home, so that they're very different and they have very different consequences.”

Joe Glavina: “So if an individual wants to change their working pattern does that mean their contract of employment needs to change?” 
  
Anne Sammon: “So I think it all depends on what your employment contract wording already says. Many employment contracts that we've been looking at have got almost a built-in flexibility in terms of location of work. So they will say things like your place of work is the company's offices, or such other locations as the company made determine as appropriate from time to time and with that type of flexibility the company can say, well, you can work from home. If you've got a very definite instruction that you must work from the company's offices that’s where you need to start thinking about whether there's a requirement to make a contractual change. Now, one of the things with hybrid working, what we've seen from a lot of clients, is that they want to have a kind of let's try it and see approach rather than embedding this forevermore so many organisations are thinking, well, at the moment we're happy for people to work maybe two days a week from home, but we don't know what the situation might be in a year, in five years, nobody can really predict where we're going with the pandemic and therefore they want that flexibility to be able to change it on a more ad hoc basis and if you build that into the contract, and say, you can work from home two days a week, in order to then change that, that's a contractual change with all the implications that come alongside that. So what we've tended to see is many employers wanting to stay away from hybrid working being a contractual policy so that they can at least argue that if in the future they need to change it and say, actually, this isn't working, we don't think there's the kind of levels of collaboration, for example, that we're expecting, and therefore we want you all to be in the office four days a week, instead of the three days a week, there's that ability to do that.”
Joe Glavina: “So with hybrid working, does it make sense for employers to offer a trial period with, perhaps, a review at the end, as we often see with flexible working requests?”

Anne Sammon: “I think the difference with hybrid working is because there's that flexibility is difficult to see what a trial might look like. So what you tend to see with a hybrid working policy is that very kind of high level you can, with the agreement of your manager, decide which days you're going to work from home. I think if somebody is doing fixed particular days at home then a manager might say, well, let's see how this goes and essentially build in a trial period whereas actually where there's flexibility on both sides, you might decide that it's not actually appropriate because if both sides are willing to be flexible then that means that you probably will be able to tweak around the edges and see what works and what doesn't.”

Joe Glavina: “So what’s your key message to HR, Anne?”

Anne Sammon: “I think the key thing that I see as being the difference is that hybrid working is all about giving the organisation and the individual flexibility whereas flexible working, rather conversely, tends to be about giving the individuals and the organisation certainty. So if you think about them in those two different ways, hybrid working will allow you to give direction as to working in a particular pattern, for example the two days a week from the office, whereas flexible working requests tend to be more around I want to do this particular thing forevermore and these are the particular hours and days that I want to be set out in stone. I think what we are seeing at the moment is a lot of clients where they've implemented hybrid working policies and employees, because of childcare reasons for example, want certainty. So if you're an employer and you've said everyone can work from home two days a week, and you're an employee and you need to work from home on, say, a Monday and a Friday, that hybrid working policy doesn't necessarily get you what you want and so then you might put in a flexible working request and say, yes, I'm happy to work two days a week from home but I want those days to be Monday and Friday and I don't want them to ever change.”

That People Management article is called ‘Third of contracts do not include flexible working, research finds’. We’ve put a link to it in the transcript of this programme.

LINKS
- Link to People Management article: ‘Third of contracts do not include flexible working, research finds’