Employment law clinic: Flexible working

The Challenge: The HR department is aware that new flexible working rights
are being introduced from 6 April 2003 and wants to understand how it should
prepare for these changes. Michael Thompson, partner and Steve Bolton, HR
consultant at Eversheds consider some of the legal and practical implications
of the new flexible working measures introduced by the Employment Act 2002.

Legal issues

The Government’s stated intention to help make the lives of working parents
easier is reflected in the new right to apply for flexible working from April
2003. It is estimated that around 3.8 million parents will be eligible to
apply.

The full details of this right are still subject to Parliamentary approval,
however, at this stage it is intended that employers will have a legal duty to
consider applications for flexible working from employees who are parents of
young or disabled children. The new right will therefore enable parents to
request to work flexibly, but will not provide a right to work flexibly.

Key points

– To be eligible to make a request, employees must have six months’ service,
have parental responsibility for a child aged under six, or for a disabled
child aged under 18, and be making the application to enable them to care for
the child

– The request to work flexibly may include a request to work from home, a
change to hours of work or to the times when an employee is required to work

– Employees must make their request by submitting a written application to
their employer

– This application will then trigger a statutory procedure for handling the
request, including set timescales, whereby the employer meets with the employee
to discuss the request, gives a written response and provides for an appeal
procedure

– The employer can only refuse the request on one or more of eight statutory
grounds which include the burden of additional cost to the business or a
detrimental impact on quality or performance

– Employees will have the right to complain to an employment tribunal but
the tribunal’s role will be limited to reviewing whether the employer complied
with the statutory procedure and will not question the employer’s reason for
refusing the request

However, employers should always consider whether refusing a flexible work
request will amount to sex, race or disability discrimination, potentially
leading to an award of unlimited compensation against the employer.

HR issues

The HR Department must begin by reviewing existing policies and procedures
to identify non-compliance. However, this is very much a starting point and a
more in-depth response is required to establish how the needs of the business
can be balanced with the needs of employees – the end result being the
production of a written policy on flexible working.

HR departments can identify the needs of their employees by conducting
employee surveys, inviting them to consultative briefings, and by discussing
ideas and getting their views. It is important that employee expectations are
not built up by this exercise and that the discussion is both realistic and
rational.

Once these views have been collected and analysed, managers need to consider
whether and how they can be accommodated without a detrimental effect on the
business. The HR department can assist this process by explaining the legal
constraints imposed on this decision-making process.

The management review should form the basis of a new flexible working
policy. The content should set the expectations, guide managers and employees
on the decision-making process, demonstrate a rational approach and be clear
and easy to understand. A good policy on flexible working will reduce the risk
of accidental legal breach by giving practical help to managers, it will
demonstrate that the organisation intends to be flexible and reduces complaints
by setting realistic expectations and offering a clear system of appeal.

It is recommended that the new policy is introduced for a trial period of
operation and following training for supervisors and managers. A trial period
gives benefits on both sides by allowing participants to see if it works for
them and letting managers assess the impact. Flexible arrangements that could
be tested include flexi-time, home-working, term-time working and v-time
(voluntary reduction in hours for agreed periods). During the trial period
regular reviews should be conducted.

Finally, research shows there are rewards for getting this right. Employers
who have introduced flexible working report reduced recruitment costs and
absenteeism, improved performance and team working and better staff morale.

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