Balfour+Manson LLP: Flexible Working in 201208/23/2012
Flexible Working: Is working 9 to 5 the best way to make a living?
Johanna Millar Employment Solictor at Balfour+Manson, looks at the benefits of flexible working hours in 2012
Working 9 to 5 for a boss who never gives her credit; Dolly Parton was resigned to traditional working patterns in the 1980’s! Would her outlook be the same in 2012? Current trends suggest that even the boss might have changed his/her opinion significantly.
The right to request flexible working was introduced in the UK in April 2003. Since then, certain categories of employee have had the right to insist that their employers properly consider their requests to change working patterns. Despite initial fears that the framework would be overly restrictive and frustrate business objectives, increasingly employers are offering flexible working to even wider categories of employees. Many employers have chosen to offer the right to request flexible working to all their staff and have reported positive results.
Although small organisations sometimes face greater challenges to implement flexible working than large employers with more flexible workforces, the benefits of a well-managed flexible working system should not be dismissed out of hand. Notwithstanding reports of improved employee morale, loyalty and productivity; a flexible working system taking advantage of advances in technology could prove to be more cost effective than traditional models of working as a result of a reduced need for desk space.
The law imposes minimum requirements on employers to consider requests to work flexibly from eligible employees.
The right to request flexible working does not give anyone a right to work flexibly or part-time; it is a right to request a change to working patterns only. In addition, only certain employees are eligible to make requests under the procedure.
There are few limits to the sorts of requests eligible employees can make. These include suggested changes to hours of work, to the times employees are required to work and even requests to work from a different location. The onus on the employer is simply to consider the request, not to accept it.
Employees are only eligible under the formal procedure if they have children who are 17 or under (18 if the child is disabled) or if they have care responsibilities for adult dependants. In addition, they must have at least six months continuous service and must not have made a request to work flexibly within the previous twelve months. Incidentally, the right to request flexible working was the subject of government consultation in late 2011 and although there is no news yet, the categories of eligible employees may be extended to include everyone with six months continuous service if current proposals are implemented.
Once the procedure is initiated employers must consider the request and can only refuse a request on a limited number of grounds. There are eight specific grounds for rejecting a request. These are:
1. The burden of additional costs
2. Detrimental effect on ability to meet customer demand
3. Inability to re-organise work among existing staff
4. Inability to recruit additional staff
5. Detrimental impact on quality
6. Detrimental impact on performance
7. Insufficiency of work during the periods the employee proposes to work
8. Planned structural changes
When a request is refused the written reason for the refusal must state which of the above reasons applies together with "sufficient explanation".
The procedure itself is often described as unnecessarily complicated. It encompasses a detailed written request from an employee followed by a meeting between the employer and the employee within a 28 day timescale. Within 14 days of the meeting the employer must write to the employee with the outcome of its decision and the employee has a further 14 days to appeal against the decision if necessary. The appeal procedure is subject to similarly prescriptive timescales.
If an employer fails to follow the procedure correctly employees can seek redress at the employment tribunal. However, the remedies are limited in scope and in compensation. As a result, employers sometimes mistakenly think that the legislation is a bit of a lame duck. However, this ignores that claims tend to be brought in conjunction with discrimination claims (for example sex discrimination) and that failure to properly implement the right to request framework could lead to unwanted inferences of discrimination being drawn.
As mentioned above, organisations which have opened up the right to request to all employees tend to go far beyond the minimum requirements of the right to request legislation. For those who have yet to embrace the flexible working culture, getting to grips with the minimum requirements and training staff appropriately is important to protect an organisation against claims. Even employers whose policies and procedures greatly enhance the minimum requirements should ensure their management staff are appropriately trained.
Where possible, we would advocate a shift in culture towards adopting an open minded attitude when it comes to flexible working.
Even if a culture of flexible working does not lend itself well to your industry; there are a number of key practical issues which employers need to consider and apply in order to reduce the chances of claims being made against them, and to increase the prospects of successfully defending any claim that is made.
First and foremost, it is vital to follow the statutory right to request procedure and adopt systems to prevent missing deadlines. If the deadlines or timescales are proving too difficult to meet, common sense dictates that being open with an employee will reduce the chances of them seeking to make a claim.
Secondly, managers should be trained on how to follow the procedure and the potential pit falls, particularly in situations where the employee could conceivably raise a discrimination complaint. A good idea is to put a written procedure in place to help managers understand the policy reasons behind the procedure and to assist them with navigating through the various deadlines.
Thirdly, employers should be in a position to demonstrate that employee requests to work flexibly have been given genuine consideration. This will include evidence of preparation in advance of the formal meeting to discuss flexible working, such as investigating the potential effects of the employee’s suggested new work pattern and exploring solutions to any perceived difficulties. For example, an employer might want to seek the opinions of line managers and if relevant, affected colleagues, and any issues which arise should be highlighted and considered. It might even be appropriate to suggest other options? Importantly, the case-law demonstrates that starting with a “can-do” attitude as opposed to a narrow minded view as to why a new work pattern is unworkable is more likely to engender sympathy from a tribunal if claims are raised.
Employers should always remember that in answering the request to work flexibly they may also be required to consider the position under the Equality Act 2010. Could the response be directly or indirectly discriminatory? Another related point is to make sure requests to work flexibly are treated consistently across the board. Flexible working requests should be recorded and processed in a way that ensures decisions are not inconsistent. This is particularly important where the applicant is a different sex from those whose requests have previously been granted, or if for example the applicant may be able to rely on some other discriminatory distinction between themselves and previous, successful, applicants.
When decisions are issued, the reasons for the decision should be explained fully and clearly to the employee.
If you are inclined to accept requests to work flexibly; taking steps to ensure safe systems of work for employees working unusual hours in varying locations will also require consideration.
The Potential Benefits of Flexible Working
Embracing change is difficult. Allowing employees to work flexibly is often considered to be expensive because additional employees are presumed necessary to ensure customer demand can be met. In addition, having employees working at different times is often considered too difficult because of the need to re-organise and allocate work between other members of staff. Then there are the communication difficulties with people working remotely, not to mention the inability to check up on what your employees are doing at various time of the day. However, given the potential benefits, it might be worth considering whether these problems are issues which cannot be overcome. Are you simply stuck in the 9 to 5 mindset?
It is a fact of life that some people are morning people and some people prefer to burn the midnight oil. It follows that sticking rigidly to a 9 to 5 work pattern may not be the best way to make the most out of your workforce, particularly if they have competing commitments at home. Most HR professionals would agree that helping your employees to strike a balance between work life and home life can actually motivate and encourage staff to work more efficiently and consequently increase productivity for your organisation. Acas have in fact produced guidance on getting the balance right.
An additional incentive - in times of financial difficulty the introduction of flexible working could in fact help employers to reduce costs whilst at the same time providing quantifiable benefits for employees. For example, your premises may be too small to accommodate your workforce - perhaps home-working and investment in secure remote access to your IT systems would prove to be more cost effective than exploring the possibility of larger premises? Alternatively, introducing flexi time and “hot-desking” could reduce the need for as many desks within a particular office?
Another advantage is that by embracing flexible working employers are likely to be in a stronger position to defend themselves in the face of discrimination complaints centring on sex or disability. With a positive approach to flexible working, employers are automatically more open and receptive to requests to accommodate those who find themselves in need of more flexibility as a result of child care commitments or health issues.
Overall, depending on your business need, the challenges posed by the introduction of flexible working may not outweigh the benefits and it might be worth the effort of changing the 9 to 5 mindset.
In 2012 it seems flexible working may be the best way for the employee and his or her boss to make a living.
For further information relating to flexible working please contact Johanna Millar or Robert Holland.