Flexible Working

Another of the big changes that took place on 6 April 2009 was to flexible working practices.  The changes are expected to benefit an additional 4.5 million working parents increasing the total number of parents who can make such a request to 10 million. 

Previously, only parents, adoptive parents, guardians, foster parents, private foster carers or a person who has been granted a residence order in respect of a child could make a request for flexible working if the child was either under the age of 6, or under the age of 18 if the child was disabled.

Following a review by Imelda Walsh, Human Resources Director at Sainsbury's, the Government have extended this right to include children up to the age of 16.  To be able to make such a request, the person must:

Be an employee

• Have 26 weeks continuous service
• Not have made a statutory request to work flexibly in the last 12 months (although refusal to consider the request without appropriate consideration could amount to indirect sex discrimination)
• Have responsibility for the care and upbringing of a child aged under 16 years (or 18 years if the child is disabled) or there is an adult that requires care that is either (a) a spouse, partner or civil partner; (b) a relative; or (c) living at the address of the employee.

Types of flexible working include changes to: hours worked e.g. decrease in hours, the times between which the employee is expected to work, the location where the employee works (e.g. working from home), and includes job sharing.

This right is not a right to be granted flexible working but rather a right for the employer to consider the application properly.  Once an arrangement has been agreed, the parties can only revert to the former arrangement if both parties agree.  The 8 grounds upon which the employer can legitimately refuse to authorise the request are:

1. the burden of additional costs
2. detrimental effect on the 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 change

Although there may be occasions where a flexible working request cannot be accommodated, it is essential that requests are considered with an open mind.  If the particular proposal put forward is not viable, employers should consider if there are any alternatives.  If the employee does not accept a reasonable alternative and subsequently brings a claim, the employer will be in a better position to defend it.

Although flexible working has always been deemed by employers to be a nuisance, employers are being encouraged to regard a request positively.  Quite apart from the ramifications of not considering such a request properly such as sex discrimination and constructive dismissal claims, employers could use the opportunity as a way of working through the recession rather than making redundancies.  Employers who have allowed their staff to cut their hours have seen their wages bill cut whilst retaining their key skills.  CIPD have said that making redundancies is only useful if there is a long-term reason to get rid of people.  Businesses who retain key staff will be in a better position to hit the ground running once the economy recovers.

Additionally, working flexibly is often seen as a “perk” and could be included as a non monetary benefit in times when awarding pay rises may be impossible.  Employees working from home can also save their employers thousands of pounds and are less likely to call in sick.

In light of this change in legislation, employers must redefine their Flexible Working policies. Contact the Team now if you think this applies to you.  There are strict time limits that employers must abide by when considering a request for flexible working.  We can also assist you with this process.

For further information please do not hesitate to contact one of the employment team.