Flexible working – Pros,cons and rights & processes under employment law

A recent survey by the Trades Union Congress (TUC) has claimed that two out of five low-paid young parents who ask for flexible work arrangements are "penalised" as a result.

According to the TUC low-paid young parents who ask for flexible work arrangements are given fewer hours, worse shifts and some have lost their jobs.

Many felt at the mercy of indifferent employers who changed their working hours on a whim. One in four (26%) parents told the TUC they had their shifts changed at short notice, and one in five (19%) had been given their rota less than a week in advance, making planning childcare very difficult.

In addition, more than half (58%) of mums and dads working in low-paid sectors like retail, hospitality and social care said that they didn’t know what rights at work they were entitled to. Nearly two in three (63%) weren’t aware of their right to unpaid parental leave.

As a result half (49%) weren’t using one or more of their legal rights to time off. That meant they ended up taking sick leave or holiday to cover childcare – nearly one in three (29%) had resorted to taking annual leave to cover their child being sick in the last year – and some were even prevented from leaving to look after their children in an emergency.

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This survey is somewhat at odds with ACAS research which found a more mixed picture:

  • Flexible working can reduce work-life conflict. This effect is largest for work-to-home conflict (i.e. reduced negative spillover from work to home) for working women with high family responsibilities, but this is a small effect.
  • Employees benefit from improved health and well-being. Employers see improved organisational productivity and retention.
  • Improvements in work performance depend on the work context: including a good relationship with the manager, organisational and supervisory support, and increased autonomy.
  • Flexible working does not necessarily increase work engagement. If flexible working is not well-supported they can increase the burden on employees. It can depend on whether flexible working arrangements were viewed as career limiting.
  • Managers are often concerned about the effects of flexible working on productivity. They are reluctant to allow flexible working, except for high performers, whose jobs are conducive to flexible working. Flexible workers are often perceived as not able to cope with the demands of a full workload, or lacking commitment.
  • Recent evidence suggests that flexible working may impact on team cohesion, which reduces team effectiveness, especially for teams with highly interdependent tasks.

What is a flexible working request?

There is no exact definition of what a flexible working request may encapsulate, but typically it can include a:

  • change the hours the employee is required to work (for example a request to work fewer hours per week)
  • change the times when the employee is required to work (for example starting later in the day)
  • change where the employee is required to work (but only as between his home and/or any place of business of the employer; no other location is covered) (for example, a request might be made by an office-based employee to work one day a week from home)

There is no restriction on how the changes might come about. For example, it is possible to ask to reduce hours by job sharing, or by becoming part-time.

Who has the right?

To be entitled to request flexible working, an individual must:

  • be an employee
  • have at least 26 weeks' continuous service
  • not have made an application for flexible working during the previous 12 months

An employee is entitled not to be subjected to a detriment by any act, or any deliberate failure to act, by his employer done on the ground that:

  • the employee made (or proposed to make) an application for flexible working, or
  • the employee brought proceedings against the employer under the appropriate legislation:
  • the employee alleged the existence of any circumstance which would constitute a ground for bringing any such proceedings under the appropriate legislation

The right not to be subjected to a detriment does not apply where the detriment in question amounts to dismissal; in such cases the unfair dismissal provisions apply instead.

'Detriment' is not defined, but an employee is subjected to a detriment if he is put at a disadvantage:

  • the test is whether a reasonable worker would or might take the view that the treatment accorded to them had in all the circumstances been to their detriment
  • this would include financial or economic disadvantage
  • it may also include denying the employee a benefit or advantage (eg the opportunity for promotion or to work overtime, or non-contractual benefits), where that benefit or advantage is accorded to others and where the employee himself might reasonably have expected it to be accorded to him too

What are the duties on employers?

Once a valid application has been submitted, the employer:

  • is obliged to deal with it in a 'reasonable manner'
  • is obliged to notify the employee of its decision on the application within a period called the 'decision period' (this is usually within three months of receiving a valid application)
  • is only entitled to refuse the application if it considers that one or more of certain defined grounds for refusal applies

The employer should of course acknowledge a flexible working application once it has been received, and set in train arrangements for discussing it with the employee.

Comments

Overall, the truth about flexible working arrangements seems to lie in the nuances of individual circumstances, the prevailing organisational culture and the given context.

Solutions that work for some organisations and individuals may not work for others.

Employers and employees should be aware that there can are some quite complex rules about handling flexible working requests and therefore would be advised to think about the contents of any application seriously. An open dialogue between both parties can help explain what is expected and allow both the employees and the employers to get an understanding if such a request can either be accommodated or if some other arrangement can be put in place.

For both employers and employees it is important to remember that the right is to request flexible working; not for it to be granted.

Get in touch

If you'd like to discuss the right to flexible working or are facing employees asking to work flexibly, please contact one of the employment team, who can assist.