Asking for flexible working is not the same as getting it

Will the government’s proposals in the Queen’s Speech make any difference whatsoever to work-life balance? Is this a significant departure from the current statutory scheme? The answer to both these questions is a resounding ‘No’.

Back to basics

There has been a good deal of inaccurate reporting of the latest proposals, which have been labelled as ‘a right to work flexibly’. So let’s go back to basics. There is no right to flexible working arrangements. There is only a duty on the employer to consider a request to work flexibly.

The government proposes to extend the existing legislation to provide for the right to request this type of arrangement to those with children over six but under 17. If, following the review by Sainsbury’s HR director, Imelda Walsh, the statutory scheme is extended in this way, it will open up the right to request to an estimated extra 4.5 million parents. This does not, however, mean employers must grant requests.

We are told by the government that the grounds set out in the current legislation for refusing a request will remain the same in any extended scheme. Employee representative bodies, including many of the largest unions, complain the current legislation does not permit staff to challenge any refusal except on very limited, mainly procedural, grounds.

Decision time

Crucially, the employer does not have to act reasonably when considering a request. This will not change.

The employer is, therefore, left to decide if the wide ranging reasons why it should not agree to the request, apply. These reasons include the burden of additional costs as well as any detrimental impact on performance or quality.

The proposals give parents with children over six very little further legal protection. Although the proposals may give another route to make a claim under any new Flexible Working Regulations, the compensation under the current scheme is limited to a maximum of eight weeks’ pay, capped at £310 per week, and there is no indication that this will change.

A claim can, of course, be made under the existing sex discrimination legislation in relation to a refusal to agree to flexible working. However, in reality, very few successful sex discrimination challenges have ever been made concerning a formal request for flexible working.

Many employers, particularly those in the retail and service sectors, have already recognised the value of work-life balance in attracting and retaining staff. They continue to put in place arrangements for staff that go well beyond the current statutory scheme – often extending the request for flexible working to all employees, not just those with young children.

Policies in place

Where enhanced value can be achieved in terms of attracting the right staff, greater retention rates and productivity, employers are often already embracing such policies. However, flexible working is not suitable for all types of work. The size of the business is an important factor, but the type of work is often more important.

So despite the hype, these proposals to extend the right to request flexible working will make very little difference to the current position.

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The more things change…

The proposals do not represent a significant change to the current position on flexible working where there is no right to work flexibly.
There is no proposal to amend the current reasons for an employer to refuse a request to work flexibly.
There is no change to the grounds for challenging any refusal.
Flexible working legislation has given employers little cause for concern.
There have been very few successful sex discrimination claims as a result of refusals to accept a request for flexible working under the current regulations.
The government does not recognise that some jobs are simply not suitable for flexible working.