Flexible option will take time to strike a balance

Rumours of flexible working legislation bursting into life have been much
exaggerated since its implementation in April 2003, but it will have a big
impact – eventually

Few new laws have received as much fanfare on their first birthday as the
flexible working legislation. The DTI has heralded the introduction of the
right to request flexible working a success. However, even though the culture
change has started, there is still a long way to go.

To date, approximately one million parents have made a request to work
flexibly under the regulations. This sounds like an impressive figure, but it
represents only a quarter of those eligible to do so. Government figures show
that eight out of 10 employees have their request to work flexibly granted,
with a compromised request agreed in a further one out of every 10

That leaves nearly three million eligible employees who have not made a

Eversheds’ own experience indicates that employers have not been flooded
with requests, and other surveys put the successful request figure much lower
than ‘official’ statistics.

The reasons for the low take-up are varied. A recent Maternity Alliance poll
found that a quarter of parents remain unaware of the new law. Even the DTI’s
own figures show that only 58 per cent of parents with children under six are
aware that they have the right to make a flexible work request. Employers must
be encouraged to inform staff about the law, particularly fathers, who make up
the maj-ority of parents still in the dark.

Many employees see a request to work flexibly as a nail in the career
coffin. Some employees have been told that they could not work flexibly unless
they relinquish management roles, and pay cuts often have to be accepted in
return for a more flexible work pattern.

Finally, the maximum compensation limits under the regulations have also
been criticised as being too low, thereby creating a ‘toothless’ right. It
appears that small employers would rather risk a tribunal claim than grant
requests for flexible working. While the maximum compensation to an employee
remains at the current level of eight weeks’ pay or £2,160 in total, the
penalty for employers of non-compliance is unlikely to bring about change.

Whatever the impact of our current legislation, the UK is lagging a long way
behind some of its closest European neighbours in its flexible working
measures. This was the finding of a recent study carried out by Eversheds. It
found that Germany, The Netherlands, Italy and Spain are among those countries
that provide all employees with a legal right to request more flexible working
arrangements, without any precondition that the flexibility be used for
childcare or family responsibilities.

It is not all bad news, though. The UK compares favourably to some countries.
Denmark, for instance, has no statutory provision for flexible working for any
workers, whether they are parents or not (although when you consider that the
parental leave entitlement in Denmark is 66 weeks, the lack of additional
flexible working rights does not seem so harsh). And fathers in Germany have no
statutory rights to paid leave when children are born.

The UK’s current flexible working provisions are due to be reviewed by the
Government in two years’ time, and it is possible that the law could be

While we await the 2006 review, those UK employers already offering flexible
working schemes for all employees are finding they are now employers of choice.
The advantages are clear: a happier workforce, increased loyalty, increased
staff retention, lower absenteeism, increased productivity and even reduced
costs. For example, following the introduction of flexible working, Unilever
has seen an 84 per cent increase in the number of female staff returning to
work after maternity leave.

The figures speak for themselves. Employers can reap the benefits – all they
need is a little change in mindset.

By Audrey Williams, Employment law partner, Eversheds

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