Flexible working – is this about to become the norm?
Currently, it is fair to say that the law on flexible working is fairly…well… flexible! It is also fair to say that this area of law is particularly “employer friendly”. But is this about to change?
There is no right for an employee to work flexibly under current UK employment legislation, only a right to request to work flexibly. Provided the employer acts reasonably in dealing with the request and it provides one of the eight business reasons (as set out in statute) why the flexible working request is not to be granted, then it is quite simple for an employer to say “no”. The test is subjective and so long as the employer gives one of the eight reasons, an employee can only challenge the decision if the employer’s view is based on incorrect facts.
Furthermore, the ability to request the flexible working is only available to employees who have 26 weeks’ service and once an employee has made a request, they cannot make another request within the following 52 weeks. Some feel, including Conservative MP Helen Whatley, that this should not be the case and the onus should be placed on the employer to provide more flexibility.
“Flexible working” could can take shape in many different forms. It can describe a place of work, for example homeworking, or a type of contract, such as a temporary contract. Other common variations include part time working, flexitime, working outside the “core hours”, job sharing and shift work.
Under a flexible working Bill introduced by MP Helen Whatley, employers would have to make flexible working a characteristic of all job roles, unless there was a sound business case for why the role could not be carried out in a flexible way. Whatley introduced the Bill in Parliament on 23 July and commented that:
“The 40-hour, five-day working week made sense in an era of single-earner households and stay-at-home mums, but it no longer reflects the reality of how many modern families want to live their lives.”
There seems to be a shift in how employees work and a recognition that not all employees can/want to work the standard Monday – Friday, 9am – 5pm job. Businesses are starting to realise that flexible working could be used as a strategic tool to support both the individual (by gaining more loyalty and dedication from them as well as a higher level of job satisfaction) which in turn improves business performance. If this opportunity is not considered, businesses could find themselves limiting their options when it comes to hiring and missing out on good candidates.
It would appear that whilst many businesses are aware of flexible working, more can be done so that businesses can benefit from the advantages it can bring. Businesses would be advised to examine any current barriers to individuals working flexibly and assess whether anything further can be done.
Reverting to MP Helen Whatley’s idea and that firms should introduce flexibility to every job could be a little stretched for some businesses. In our experience, we see flexible working requests are taken a step too far and the employee will request patterns that would be clearly detrimental to the operations of the business. A fair balance seems to be the answer and rather than making flexible working the default, perhaps a stricter test needs to be applied when businesses are considering flexible requests.
Whichever way the law will go on this, our advice still remains that flexible working can bring a diverse and loyal workforce. Being creative and open-minded about flexibility tends to promote trust, provided the appropriate people management systems and processes are in place.
Claire Knowles – Partner
Mark Alaszewski – Associate
Rebecca Mahon – Solicitor
Adam McGlynn – Trainee Solicitor