International governments are offering employees increasing rights to request flexible working arrangements, as organisations see that family and work can complement, rather than compete with, each other. However, the law and good practice vary around the world.
Companies have discovered that flexible working solutions, such as part-time work, job-sharing, home working, compressed hours, flexitime, annualised hours, staggered hours and phased retirement, may boost productivity and allow them to retain talent during times of recession. However, attitudes towards flexible work are widespread and are still evolving in many countries in different ways.
Flexible working arrangements in the UK
In June 2014, the UK Government introduced the right to request flexible working to all employees with at least 26 weeks’ service.
With the aim of creating a “modern workplace”, it removed the parental/caring requirement and moved the discussion away from the reasons why employees need to work flexibly onto how flexible working will work for businesses.
The process for requesting flexible arrangements has been simplified, but employees still continue to have only “a right to ask”, and employers can refuse a request if they are able to demonstrate that it will not work within their organisation.
Subject to meeting certain qualifying conditions, parents with children due (or placed for adoption) on or after 5 April 2015 are able to take advantage of the new Shared Parental Leave Regulations. The system is complicated, but, essentially, a mother will be able to choose to share most of her maternity leave and pay with her partner or the child’s father. The main changes from the current additional paternity leave scheme are that:
- both parents can be off at the same time (ie both on shared parental leave or the mother on maternity leave and the partner on shared parental leave); and
- the leave can be taken discontinuously (ie it does not need to be taken in a single block, although it does need to be taken one week at a time).
Business necessity and legal compliance are the main drivers for flexible working arrangements in the US, where a comprehensive national programme addressing flexible working arrangements does not exist.
The need to retain and attract good employees with family obligations, and the need to reasonably accommodate qualified employees with a disability in order to comply with the legal requirements, are common catalysts for flexible working arrangements.
Because the statutes and circumstances that commonly lead employers and employees to consider flexible working arrangements in the US are fact-specific, working arrangements there are like snowflakes – no two are the same. One common option (often the archetype) is working from home, especially when the employee has family care responsibilities or a temporary disability that renders commuting difficult.
Another option often used is adjusted work hours; for instance, an employee may be allowed to arrive at work early in the morning and leave earlier in the afternoon (or vice versa).
On occasion, the Family Medical Leave Act (FMLA) and its associated regulatory interpretations may compel employers to adjust work schedules for employees with a serious health condition in certain “intermittent leave” circumstances, although FMLA does not require this leave to be paid.
Finally, all employers in the US should be aware of the robust protections afforded to employees with military service obligations pursuant to the Uniformed Services Employment and Re-Employment Rights Act (USERRA).
Like the UK, Italy is in the process of increasing flexible working arrangements to tackle high unemployment rates and make the job market more dynamic and attractive. At the same time, its Government wants to improve work-life balance for employees.
Provisions for flexible working have been provided in law and in national collective agreements for some time, with part-time working being the most popular. The provisions mainly target parents and people with recognised medical conditions, or those who need to assist relatives with severe health problems.
Reforms to be enacted in 2015 will introduce important experimental provisions aimed at giving more maternity protection and increasing work-life balance for employees. Mothers will be able to make up the days of maternity leave lost due to premature childbirth, even when this exceeds the compulsory period of five months of maternity leave provided by law. Mothers may also suspend and reactivate their maternity leave in the event of the hospitalisation of their child.
In addition, the period during which parents can share parental leave of 10 months has been increased from eight to 12 years. The period in which parents receive payment of 30% of their salary during paternity leave has also been extended from when the child is aged three to when the child is six.
It is also possible that employees will be able to request that an employer changes their employment contract from full time to part-time for the duration of parental leave. Adoptive and foster parents could be granted almost the same rights as natural parents.
Also within the framework of offering a better work-life balance, changes are planned in relation to telework, which up until now has not been covered by law, but regulated by special agreements and provisions of national collective bargaining agreements. The reform aims to incentivise the use of telework by employers, and plans to exclude teleworkers from the quota of employees used as reference for the application of some laws that imply greater restrictions on larger companies (for example, regulations on individual and collective dismissals).
Another innovation planned is the introduction of three months fully paid leave to be used over a period of three years for women who are victims of abuse, and are participating in protection programmes against gender violence.
In Germany, there is no special government programme providing flexible working arrangements, even though there has been growth in flexible working and numerous statutory provisions offering flexible working models.
Those who have been employed for more than six months in organisations with more than 15 staff may request a reduction of working time, but the employer can deny the request on operational grounds. In addition, employees in companies with more than 15 staff with newborn children may take a break from work for up to three years. Employees who provide nursing care for family members may take a break for up to six months.
Larger companies offer a wide variety of flexible working time options, for example flexi-time, working hours based on trust between the employer and employee, on-call working or annualised hours working, often regulated by collective or collective agreements.
However, for flexible and individual non-conventional working arrangements such as home working, job sharing, sabbaticals or phased retirement, a consensual agreement between employee and employer is needed.
Flexible working arrangements have been offered for a long time in France, but recent legislation introduced a new concept of flexibility. This was not only for the benefit of the employees, but also to allow businesses to adapt to change.
The importance of maintaining a good work-life balance has been recognised by French law for many years, but now the Government is considering provisions for employers’ needs for flexibility. In particular, recent laws facilitate the use of short-term work in order to avoid redundancies and the annualisation of working time to avoid overtime payments in periods of high activity.
Employers must be cautious when considering such arrangements, because tracking and compensating the time of an employee working flexibly can be difficult and because business licence requirements in various cities, counties, and states may require some form of registration for employees working from home.
The overview above shows that, despite different legislation regimes, flexible working arrangements are becoming more established internationally. This is due to the realisation that flexible solutions are no longer an exclusive need of employees but also of employers. The latter are, in fact, finding ways to exploit this kind of flexibility, while governments are providing regulatory recognition of the existence of such flexible solutions by introducing substantial reforms in order to allow a better work-life balance.
Both businesses and HR departments need to analyse these new solutions and assess the benefit to the organisation, as well as the need to promote a better work-life balance for employees.
Authors: Emanuela Nespoli is a partner at Italian law firm, Toffoletto De Luca Tamajo e Soci; Lucy Lewis is a partner at UK law firm, Lewis Silkin; Matthew Gilley is a partner at US law firm, Ford Harrison; Gerald Wiedebusch is an attorney at German law firm, Kleimt & Vollstädt; and Jean-Baptiste Chavialle is senior associate at French firm, Capstan. All firms are members of global HR and employment law firm alliance, Ius Laboris.