Flexible working

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Flexible working is on the rise, giving employees flexibility on where, when and what hours they work. Traditionally associated with the needs of parents and carers, but not solely restricted to requests made by employees for these reasons, organisations are increasingly recognising the business benefits of this form of working.

Indeed, a number of advantages exist for employers. These include:

• increased employee morale, engagement and commitment to the organisation
• reduced absenteeism and tardiness
• increased ability to recruit outstanding employees
• reduced turnover of valued staff
• allowing staff to work when they accomplish most and feel freshest
• easier extended hours of operation
• an image as an employer of choice with family-friendly flexible work schedules

For the employee, meanwhile, flexibility exists with the following:

• meeting family needs and personal obligations
• reduced commuting time and fuel costs – the avoidance of traffic and the stresses of commuting during rush hours
• a feeling of personal control over schedule and work environment
• a reduction in employee burnout due to overload
• a potential decrease in childcare hours and costs

Any employee who has worked for his or her employer for more than 26 weeks is entitled to make a request for flexible working, as long as he or she has not already made a request in the past 12 months. However, while half of UK employers offer flexible working arrangements, a report (CBI, 2016) found just 1 in 10 job listings mentioned flexible work.

Employers have flexibility as to how they handle requests, as long as they are dealt with in a reasonable manner and the decision is notified to the employee within three months (including any appeal/appeal decision).

Employees have the option to agree an extension to this time frame with their employer and this may be of benefit – for example, where an employer suggests a trial period before its final decision is made.

To ensure employers handle requests in a reasonable manner, Advisory Conciliation and Arbitration Service (ACAS) has produced a code of practice (ACAS, 2015), which will be taken into account by any tribunal. It provides simplified guidance on how the decision process should look.

Employers should first arrange to talk to an employee as soon as possible. This should be a professional conversation out of earshot of other staff members, with the right for the employee to be accompanied.

Even if an employer intends to grant the request, it should speak to the employee first as it may be the need for flexible working is only temporary. Alternatively, an employer may intend to refuse the request, but, after discussions with the employee, realise a compromise can be reached.

Each request should be considered carefully and objectively, weighing the benefits of the request for the employee and the employer’s business against adverse business impact. The request can only be refused on the basis of one of the business reasons set out in the Employment Rights Act (1996). Whatever the decision, the employer should inform the employee – preferably in writing for clarity.

If the request is accepted, the employer should discuss how the changes will be implemented and detail any changes in terms and conditions. If the request is refused, the employer should provide a valid business reason and notify the employee of the right to appeal.

Handling multiple requests

Although many employers are sympathetic to flexible working requests, some will be worried about the lack of guidance on how to treat competing requests. The risk will certainly exist that employers will reach saturation point.

It is, therefore, encouraged to ask other employees, who are already working flexibly, whether they would like to return to work full-time. Employers will also need to be careful not to inadvertently discriminate against employees who are making a request in relation to the Equality Act (2010) – that is, for reasonable adjustments.

Getting it wrong

Employers that fail to deal with a flexible working request in accordance with the required procedure risk being faced with an employment tribunal complaint.
Failure to follow the correct procedure may result in a tribunal ordering the employee to reconsider the employee’s application and potentially pay the employee compensation.

Perhaps more seriously, an employee may argue the reason for the rejection of his or her flexible working request was discriminatory, and seek compensation from an employment tribunal for compensation for the injury to feelings he or she has suffered as a result. The awards for discrimination are uncapped.

Summary

Employers are advised to consider the changes carefully and implement policies for flexible working in consultation with employees and their representatives.

It may also be wise for employers to provide precedent forms to ensure employees include all of the prescribed information in their notice or request. This could be particularly useful for flexible working requests serving as a means for the employer to enquire whether the request is in relation to the Equality Act.

• Mark Stevens is a solicitor at Veale Wasbrough Vizards.

References

• Advisory, Conciliation and Arbitration Service (2014). Handling in a reasonable manner requests to work flexibly.
• Confederation of British Industry (CBI; 2016). People and partnership: CBI/Pertemps Network Group employment trends survey.
• Employment Rights Act (1996)
• Equality Act (2010)