The Flexible Working Task Force, a partnership across government departments, business groups, trade unions and charities, launched a campaign this January to increase the uptake of flexible working. This coincided with a CIPD report, Megatrends: Flexible Working, which found that the use of flexible working arrangements had plateaued since 2010, even though since 2014 the statutory right to request flexible working was extended to all employees.
The report cites various reasons why flexible working opportunities are being missed, such as attitudes of managers, employees' negative assumptions about the consequences of flexible working and limited options offered by employers.
A statutory flexible working request can be made by an employee who has at least 26 weeks’ continuous service when the request is made, and only one request can be made in any 12 months. The request can include changes to the hours or time worked, as well as the place of work. An application must be in writing and state it is being made under the statutory procedure.
The employer has to deal with the request in a ‘reasonable manner’ and the ACAS code on the right to work flexibly recommends discussing the request with the employee promptly and allowing them to be accompanied at meetings. The employer must complete the process, including any appeals, within three months – but this can be extended by agreement.
A statutory request can only be refused for one of the eight statutory business reasons, such as the burden of additional costs or the inability to reorganise work. However, employers should be aware that any member of staff could informally approach them about the possibility of changing their working patterns, as employees may have other protection that means their request should be carefully considered.
For example, an employee who wishes to request to work flexibly to accommodate their religious beliefs, or an employee who wishes to change their hours due to childcare arrangements could have indirect discrimination claims based on ‘religion or belief’ or ‘sex’, if their requests were unreasonably refused. Similarly, a man won a direct sex discrimination claim after his employer refused his request to work part-time to look after his son, even though it had granted similar requests for women in the company. This highlights the importance that flexible working should be gender neutral.
However, employers do not always have to accept flexible working requests. For example, after an employee returning from maternity leave requested to reduce her hours, an employment tribunal found that the employer fairly rejected a flexible working request because of the impact on its ability to look after clients and the disproportionate pressure placed on other staff. In another case, an employee returning from maternity leave had her request to work from home rejected fairly due to the employer's collaborative way of working.
Benefits and encouraging uptake
There are undoubted benefits to flexible working, such as improved productivity, commitment of staff and better staff retention. Offering flexible working options makes good business sense, especially at a time when some organisations are struggling to recruit and retain skilled staff, a problem which may be exacerbated by Brexit. Employers can encourage flexible working by making, promoting and publicising it within their businesses and externally, for example (as recommended by the Task Force) by advertising jobs, whatever the level or pay grade, with the strapline ‘Happy to talk flexible working’.
Interestingly, the Labour party has recently pledged for day one flexible working rights “with a presumption in favour of flexible working” following a recent ONS study which showed that nearly half of women and a third of men looking after young children and elderly parents feel shut out of the labour market due to a lack of flexibility.
Paula Kathrens is a partner in the employment law team at Blake Morgan