January 18, 2018

Flexible working and the law

It is almost 18 years since flexible working legislation was introduced in the UK and there is no doubt that it has dramatically changed the nature of work in that time. People are much more able to work where they want to work, when they want to work and how they want to work. Not that it is all about employees – employers often benefit from flexible working arrangements as well. For example, flexible working patterns can enable employers to manage peaks and troughs in demand more effectively, which has a positive effect on performance, productivity, resourcing and costs. They help employers retain and recruit staff and help reduce overall stress, sickness and absence levels.

When managed well, flexible working is a win win situation. Or even a win, win, win situation, whereby employers, employees and customers all benefit.

Let’s take a look at what flexible working and the law is – what is the law and what are your rights as an employer and as an employee?

The history of flexible working
Flexible working legislation was first introduced in the UK in 2003, when the government gave parents with children aged under 6 or parents with disabled children under 18, the right to request a flexible working arrangement from their employer. There have been several amendments and additions to that initial piece of legislation since then, such as carers of adult dependents becoming eligible to apply for flexible working in 2007. Then, in June 2014, flexible working legislation was broadened out to include all employees, whether they are parents or not, carers or not. The only stipulation is that employees have worked for their employee for a certain number of weeks before applying.

What is flexible working?
Flexible working is essentially any type of working that is different from the standard 9-5 working day. It could mean different start and/or finish times, which is often called flexitime. It could mean working from home some or all of the time. It could mean dropping down to part time work or job sharing. It could mean working compressed hours. It also includes shift work and temporary contracts. Basically, it is allowing employees to work at a time and location that suits them.

Who is eligible for flexible working?
All employees are now eligible to request flexible working, as long as they have worked continuously for their employer for 26 weeks or more. Men and women are eligible, be they parents or not, carers of dependent adults or not.

Employees: how to request flexible working
There is a procedure that employees have to follow when putting in their request for flexible working. It’s called ‘making a statutory application’. To do this, the employee needs to write to their employer (letter or email) and bear in mind that the employer needs to consider their request and make a decision within three months (or longer if the employee agrees to a longer deadline). If the employer assents to the request, then they must change the terms and conditions in the employee’s contract. If the employer says no, they need to inform the employee of their decision in writing, making out the business case for the refusal. If the employee feels their request has not been considered fairly and they are unhappy with the process and/or outcome, they can apply to an employment tribunal.

Employees can only make one flexible working request a year. Employers may have a standard flexible working application form. If not, employees must include certain things in their letter/email. They are:

– the date
– a statement that it is a statutory request
– details of how the employee wants to work flexibly and when they want it to start
– an explanation of how the employee thinks the proposed flexible working might affect the business and how any issues could be resolved – such as the implications of the employee starting their working day an hour earlier than currently and finishing an hour earlier.
– A statement saying if and when the employee has made a previous application

There are two other legal points that employees need to be mindful of. Firstly, if they want to withdraw their application, they need to tell their employer in writing. Secondly, if an employee misses two meetings to discuss either an application or an appeal and they don’t have a good reason (such as sickness) for missing the meetings, then the employer can treat the application as withdrawn. The employer must inform the employee of this.

Employers: how to manage flexible working requests
Unless the employer and their employee agree a longer timeframe, then employers must consider any flexible working requests and give their decision within three months of the application date. This includes any appeals.

It is incumbent upon employers that they consider any requests in a reasonable manner and only refuse requests if there are sound business reasons for doing so. Here is a list of the permitted reasons:

– the burden of additional costs
– an inability to reorganise work amongst existing staff
– an inability to recruit additional staff
– a detrimental impact on quality
– a detrimental impact on performance
– detrimental effect on the ability to meet customer demand
– insufficient work for the periods the employee proposes to work
– planned structural changes to the business

Once an employer has received a flexible working application, it is considered good practice (though is not a legal requirement) to arrange a meeting to discuss the request and as soon as is possible. It is also advisable, but again not a legal requirement, for the employee to be allowed to attend the meeting accompanied by a work colleague or trade union representative.

If the employer and employee agree upon the proposed change, then the employer needs to make the necessary terms and conditions changes to the employee’s contract.

Should there be any disputes or appeals, Acas (the Advisory, Conciliation and Arbitration Service) offers guidance on its website: http://www.acas.org.uk/index.aspx?articleid=1616

How popular is flexible working?
According to a 2017 survey by conference call service provider powwownow, 58% of workers are offered flexible working arrangements, but 24% of them don’t make use of it. There are more flexible working-related statistics from the powwownow survey:

– 47% of full time employees do not have flexible working encouraged at their workplace
– 67% of employees wish they were offered flexible working
– 58% of people believe that working away from the office would help them become more motivated
– 53% of people feel they would be more productive if they could work outside of the office
– 70% of workers feel that offering flexible working makes a job more attractive to them
– 30% of people would choose flexible working over a pay rise if they could choose only one

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