The latest legal outlook on flexible working

Adam Cooke and Katy Carr ask where the law currently stands and what developments are in the pipeline

The latest legal outlook on flexible working

The workplace is changing rapidly. In contrast to the traditional 9-5 working day at a fixed workplace, employees are now working more flexibly (or certainly wish to be) to meet the demands of their busy home lives, especially around caring for children, disabled dependants and elderly relatives. Simultaneously, rapid advances in technology continue to transform the nature of work, meaning physical presence within an office and defined working hours are no longer always necessary. 

Some employers have already begun to offer flexible working practices as the norm and there is certainly a change in what employees now expect from a prospective employer. A prime example is the ‘sandwich generation’, which includes those who need to balance obligations to children and elderly relatives. These workers desire flexibility in the workplace to help balance personal and professional commitments. Businesses risk losing the talent, skills and experience of this group if they are unable to offer flexibility. 

As the law currently stands, employees with 26 weeks’ continuous service have a statutory right to request flexible working by making an application in a prescribed form. This includes the right to request part-time hours, compressed hours, flexitime, home-working and job-sharing. The employer has three months to make a decision and employees can only make one request in any 12-month period. 

Employers are obliged to consider a flexible working request in a reasonable manner and can only refuse it on one of eight grounds. These include cost or a detrimental impact on customers, other staff, quality or performance. These grounds are subjective – if the employer considers one to apply, the test is satisfied.

A survey by the TUC has shown that one in three flexible work requests are rejected by employers. A private members bill on flexible working was introduced into parliament in July. This proposed obliging employers to advertise positions as suitable for flexible working or to set out the reasons that a job could not be done flexibly, rather than an employee having to make a formal request. While this is unlikely to become law, it has renewed debate around work-life balance issues.

The government is also consulting on various proposals, under its Good Work Plan, to better support parents in balancing work and family life. In particular there are proposals to extend family-related leave and pay, and to introduce greater transparency around family-friendly employment policies. The results of the consultation are due in 2020.

All employees have their own optimal working style and life situation. If employers are invested in attracting and retaining a skilled workforce and getting the best out of them, they must begin to recognise this and, as far as possible, give employees flexibility. Granting appropriate concessions, such as a change to working hours or location, will enable each employee to adapt and optimise performance for their specific work profile and circumstances. This will, in turn, enhance productivity and engagement and have a positive impact on workplace health and wellbeing. 

Workplaces need to adapt to keep pace with modern life. Communities are changing and family life and responsibilities are becoming increasingly demanding. Flexible working can help to redress the balance. While there is currently no requirement for employers to offer flexible working, voluntary adoption of flexible working practices where possible will help attract the best talent and create a loyal and diverse workforce.

Adam Cooke is an associate and Katy Carr a senior associate in the employment team at Stephenson Harwood