Plans to extend the right to request flexible working look set to go ahead. Peter Rabbitts, knowledge adviser at Acas , outlines the implications for employers and HR.
The work-life balance lobby was shaken in October, when it was mooted that plans to extend the right to request flexible working to parents of children up to the age of 16 were to be put on hold due to the economic downturn. However, the Queen’s Speech, heralding the start of the new parliamentary session, confirmed that it would in fact go ahead as planned.
Now, with the economy officially in recession, does this expanded right represent a threat or an opportunity to business, and what’s in it for the individual employee?
The first thing to note is that the right is only one to request flexible working. There is no right to actually obtain such a change in working arrangements. However, there is a duty on employers to give serious consideration to any such requests.
We are not talking here of a general right, but of one qualified by circumstances: namely, the responsibility of caring for others. When it was originally introduced in 2003, the measure was targeted at parents of young or disabled children. In 2007, it was extended to carers of adults, while this latest instalment has arisen following the independent review commissioned by the government and carried out by Imelda Walsh, HR director at Sainsbury’s.
Assuming the review’s recommendations survive the consultation process – the official response to which is still being awaited – in April, those with parental responsibility for all children up to the age of 16 (parents of disabled children already have this right) will be brought within the legislation’s scope.
As for the mechanics of exercising the right, any employee considering such action must decide precisely what they are looking to achieve. The law requires the applicant to be specific as to the form of flexibility being sought, and to have also thought about any knock-on effects such a change would have on the business. So from the very outset, the onus is placed on the employee to think their request through – not least because, if accepted, it will mean a permanent change to the contract of employment.
Flexibility appears in many shapes and forms when it comes to looking at working patterns but, on the whole, it involves variations of hours worked, start and finish times, and location.
The range of options has increased over recent years with the impact of technology and innovative schemes: the list extends from basic part-time working through to annualised hours, with all levels of complexity in between. However, what is feasible in any given workplace may well be limited by operational requirements and the resources available.
Compliance with the specified procedure is important at all stages to ensure validity under the statutory scheme. The employee needs to make the application in writing, invoking the statutory right, and providing details of their caring responsibilities.
Although there is no prescribed application form, the Department for Business Enterprise and Regulatory Reform (BERR) website provides a template covering all the relevant information, including the date of any previous applications (as there is a 12-month moratorium on repeat submissions).
Once the employer has received a properly completed application, they have 28 days to arrange a meeting to discuss it (unless they can agree to the request straight away). The purpose of this meeting is essentially to enter into a dialogue, whereby agreement can be reached. Even if it appears unlikely that the requested working pattern can be met, it may be worthwhile exploring possible alternatives.
The employer must then notify the employee of their decision within 14 days of the meeting. If the request, in its original or amended form, is accepted, the details of the new working pattern should be set out, with the date these will come into force. The permanence of this change should also be addressed.
As part of the consultation on the aforementioned Walsh review, and with an eye to reducing administrative burdens, the government is proposing to remove the requirement to set the acceptance of a request for flexible working down in writing. This is a controversial point and the final word on it is still being awaited.
If, on the other hand, the request is rejected, the grounds upon which this decision has been made have to be notified and explained. Grounds for rejection, specified by statute, are wide-ranging, and include the impact on costs, quality, performance and staffing, as well as the ability to service customer demand.
The employee can appeal this decision, but if internal procedures cannot resolve the issue, workplace mediation may be a viable way forward. Recourse to an employment tribunal is allowed, but only on the allegation that either the decision to reject the request was based on incorrect facts, or that the procedure wasn’t followed correctly. As an alternative to tribunal, the Acas arbitration scheme can be used.
While the momentum behind the law on flexible working has been employee-rights driven, the value to employers of operating a range of working patterns has been broadly recognised.
The HR agenda has seen the emergence of the flexible working policy as a means of achieving enhanced productivity, as well as a tool of employee engagement. For example, if a retail business is able to extend its operating hours, there will be a clear benefit to customers.
Less immediate, but just as compelling, are the savings generated by reduced absence rates, the better calibre of recruit likely to be attracted to such a working environment, and the increase in morale and job satisfaction, as well as the competitive edge these benefits are likely to yield.
Acas regularly encounters issues around flexible working when advice is being sought either on initiating policies or dealing with individual requests. Very often, there are cultural hurdles to overcome when considering a move away from the ‘nine to five’ or office-based work.
At an organisational level, policies can be worked up jointly between management and employee representatives to address problem areas. At the level of the individual, there is no harm in allowing them to trial a new working pattern – as long as it’s clear to both sides that it is no more than that, and doesn’t prejudice recourse to the statutory process at a later date.
It is estimated that about 4.5 million more parents will be able to make flexible working requests from this April. In this period of uncertainty, a positive attitude to flexible working might stave off the need for more draconian means of cutting costs, while, when the upturn comes, it will be a considerable advantage in a tight labour market.
One view that emerged strongly from the then Department of Trade and Industry’s (now BERR) third Work-Life Balance Employees’ Survey in 2006 was that the right should be made general, rather than being limited to particular categories of carers. Opposition might simply amount to swimming against the tide.
What do other employment experts think?
Mary Mercer, principal consultant, Institute for Employment Studies
“The extension of the right to request flexible working is the right way forward to benefit both businesses and employees. It will only achieve its aims, however, if HR professionals provide the right architecture to ensure their line management colleagues – who ought to be the ones actually considering the requests – have confidence in evaluating requests against the business need, consider requests equally and fairly, and then manage flexible workers appropriately.
“Not doing this will lead to more of what we have already seen in some organisations: men more likely to have their requests turned down, flexible workers given poorer performance outcomes and therefore suffering in term of pay and progression, and managers being unsure about what types of flexibility suit their business.
“HR teams must therefore support managers in exploring the business impact of each request. They must audit request outcomes, query any imbalance and, vitally, they must ensure managers know how to set proper output-based performance objectives and evaluate performance against them. HR holds the key to making flexible working the real business benefit we know it can be.”
David Yeandle, head of employment policy, EEF
“EEF carried out a flexible working survey of its members in early 2007. This showed that, while companies are saying yes to most requests, the majority of them encounter problems as a result. So, although we believe that, in the right circumstances, flexible working can provide benefits for companies, even before the economic downturn we thought that this extension went too far and is being implemented too soon.
“It is not always easy to manage flexible working, particularly in a manufacturing environment. In our view, the main issue is not the resources needed to deal with requests (though we think these are vastly under-estimated in the government’s impact assessment).
“Of far more significance are the many challenges thrown up by managing a workforce where there are different working patterns – and the impact this can have on costs, productivity, and other employees if they are not handled well.”
Sarah Williams-Gardener, director, Opportunity Now (a gender equality campaign run by corporate responsibility employers’ group Business in the Community)
“Flexible working and the extension of the right to request it should not be seen as an irritation or an adjunct to business as usual – I would encourage employers to view flexibility through a lens of business success and delivery. In challenging economic times, where salaries are being frozen and bonuses are vanishing, flexible working can offer a way of keeping talented people engaged and motivated.
“At the moment, many companies looking for immediate cost savings are opting for the ‘slash and burn’ approach, only later having to make a huge investment in rehiring and retraining. Enlightened employers see flexible working as a way to retain expertise, cut overheads, and motivate staff.
“The majority of workplaces are still designed around a mid-20th-century lifestyle, with an outdated approach to where, when and how work happens. I encourage employers to see work as an activity, not a place judge people on performance, not presenteeism and use the change in law as a springboard for creating cultures that are truly agile and deliver maximum business benefit.”