Better Bend than Break: Flexible Working
With more of us working longer hours than before, and struggling to find a good work-life balance, flexibility in our working hours may seem to be the way forward. But can you reasonably expect to be granted a flexible working pattern to enjoy a hobby, to study or just to improve your work-life balance?
Imagine the following scenarios:
- Susi has two young children and asks if she can work in term-time only.
- Jenny is doing a college course and wants to work her full-time hours over four days, to have an extra day free for study.
- Michael’s mother is elderly. He would like to work flexi-time so that he can drive her to medical appointments when she needs them.
- Raj wishes to spend more time on his photography hobby and asks to reduce his hours from full time to 28 hours.
- Golda has a long drive to work. She wonders if she can work from home for two days a week to improve her work-life balance
Is it possible for all of them ask to work flexibly?
Since 30 June 2014, the answer is yes. Until that time the right to request flexible working was limited to parents of children under the age of 17 years (18 if the child had a disability), and to certain carers. Therefore only Susi and Michael would have been able to make a request to work flexibly. This changed with the introduction of the Children and Families Act 2014. Now, all employees have the statutory right to request flexible working for any reason, provided they have 26 continuous weeks of service with their employer and haven’t made another flexible working request in the past 12 months.
People who meet these criteria can ask for a change in hours, location or working time. They might ask to work part-time, in term-time only, to job share, to use flexitime or compressed working weeks, or to regularly work from home. Because there is no longer a requirement that an employee must have parental or caring responsibility in order to make a request, people can ask to work flexibly for a wide variety of reasons – such as to attend a further education course, to pursue hobbies, to combine work with looking after children or grandchildren, or simply to improve their work-life balance.
This change doesn’t give employees an automatic right to work flexibly – but it does provide the right to request flexible working and means that employers and managers have a duty to handle requests in a reasonable manner.
What does handling requests in a ‘reasonable manner’ mean?
ACAS’s Code of Practice and Guidance on handling requests to work flexibly says that in order to act reasonably, a manager who receives a flexible working request should:
- arrange to discuss it with the employee as soon as possible – it is good practice to allow them to be accompanied by a colleague or Trade Union representative;
- consider the request objectively, looking at the benefits for the business and the employee of the requested change of working pattern and weighing these against any adverse impact of the business.
The manager must then let the employee know their decision to:
- accept the request or
- confirm a compromise agreed at the discussion, e.g. a temporary agreement to work flexibly, or
- reject the request, setting out clear business reasons, how these apply to the application and any appeal process.
All flexible working requests, including appeals, must be considered and decided on within three months of receipt of the request unless an extension is agreed.
When can a manager reject a request for flexible working?
A flexible working request can only be rejected for one or more of the following eight business reasons:
- Additional costs which are unacceptable to the organisation
- Detrimental effect on the ability to meet customer demand
- Inability to reorganise work among existing staff
- Inability to recruit new staff
- Detrimental impact on quality
- Detrimental impact on performance
- Insufficient work is available during the proposed times of work
- Planned structural changes
Golda, who has asked to work from home for two days a week, recently started managing a team which has had serious performance and conduct problems. A key part of her role is to rebuild the team. Golda’s manager considers the request and concludes that she cannot agree to it at present, because Golda working from home would mean that she was not available to tackle problems with performance or behaviour as they arose. Therefore she turns the request down because accepting it would have a detrimental impact on performance. She agrees to review the request again in 12 months.
Avoiding unlawful discrimination
When applying one or more of the eight business reasons for rejecting a flexible working request, managers need to be careful not to unlawfully discriminate.
Susi who has asked for a term-time only contract to help her to manage childcare responsibilities is told by her manager that her job as an accountant cannot be done effectively by someone working term-time only. Unless her manager can objectively justify this – e.g. by demonstrating that there will be a detrimental effect on the ability to meet customer demand – this may be indirect discrimination against Susi because of her sex, since more women than men are likely to combine paid employment with caring responsibilities.
What if there are competing requests?
Employers and managers may receive a number of requests from members of a team which, while they could individually be accepted, would create significant business problems if they were all agreed.
ACAS guidance says that requests should be considered in the order they are received. So, if Michael and Raj work for the same team and Michael’s request to work flexibly was received first, their manager can consider Michael’s request first and, if she approves it, then consider Raj’s request, being mindful that the business context has now changed because Michael is working flexi-time, and taking this into account when considering the second request. The manager may want to have a discussion with both Michael and Raj to see if there is any room for compromise on their requests before she makes her decision.
Managers should consider each case on its merits, considering the business case and the possible impact of agreeing or refusing a request. However, it is important that managers are careful not to unintentionally discriminate against particular employees –e.g. a flexible working arrangement might be a reasonable adjustment for a disabled employee.
What happens if employees don’t agree with a decision?
Appeals against the outcome of flexible working requests are not legally required, but they are good practice and can help avoid workplace grievances.
Employees may be able to bring a tribunal claim if they think they have been treated badly because they asked for flexible working or if they believe their employer has wrongly treated their request as withdrawn or if the decision is not made in time.
The business case for flexible working
Despite the challenges, there are significant benefits for businesses in supporting flexible working requests. Jenny’s firm finds that it helps keep valuable staff, opens a wider talent pool, reduces absenteeism, increases staff commitment and improves productivity. Michael’s company, meanwhile, is pleased that it is able to extend opening hours because of the more flexible availability of staff.
