Flexible working: what employers should do to prepare for extension

If an employee’s request is refused on one of the allowed business grounds, the individual could request an appeal hearing. If the employee exercises this right the employer must then arrange for the appeal to be heard within 14 days of being informed of the employee’s wishes. The employee must be told of the decision within 14 days after the date of the hearing. These time limits may be extended, however, providing the employer records the relevant details in writing and sends a copy to the employee.

If the employer refuses the request again there are still a number of options available to the employee, which include:

Holding informal talks with the employer
Entering into the employer’s grievance procedure
Acquiring assistance from Acas, possibly through a process of conciliation
Acquiring assistance from a third party, such as a trade union representative
Making a complaint to the employment tribunal

From 6 April 2009, the right to request flexible working can be made by those with children up to the age of 16, making it available to an extra 4.5 million parents. At present it is only offered to those with children under six (or 18 if disabled) and to carers of adults.

While the government’s decision has been welcomed by unions and by the Chartered Institute of Personnel and Development (CIPD), others feel that the changes will prove too onerous for businesses, particularly in the current economic climate. The Confederation of British Industry (CBI) has suggested that the extension will cost employers an extra £69m a year.

The idea to extend the right arose as a result of an independent review conducted by Sainsbury’s HR director Imelda Walsh. She concluded that parents should be given greater flexibility to support their children in the “difficult transition from childhood to young adulthood via the teenage years”, and extending the right to those with children up to the age of 16 would allow this.

Flexible working can take several forms and includes, for example, part-time working, shift-working, flexitime, working from home, job sharing, staggered hours and compressed working hours.

The right to request

On 6 April 2003, the right to request flexible working was made available to those with children under the age of six (or 18 if disabled), covering an estimated six million people. The right was extended on 6 April 2007 to carers, meaning employees who care for, or expect to care for, a spouse, partner or relative, or live at the same address as the adult needing care.

Within 28 days of receiving a written request from an eligible employee, an employer must arrange to meet the employee. The employer then has 14 days to write to the employee either to accept the proposals or provide grounds for rejection (see box, below). If the application is rejected, the employee then has the opportunity to follow an appeal procedure (see box, opposite). The same procedure is proposed under the new regime.

Since its introduction, the right to request flexible working has been seen by both sides as a great success. Employees have not swamped their employers with requests for the right and, in turn, employers have generally been accommodating in seeking to meet requests. According to Walsh, 91% of requests have been granted by employers.

According to the Federation of Small Businesses, the cost of the current flexible working provisions to employers is already estimated to be more than £22m. With a predicted 300,000 extra requests, as already mentioned, the extra cost will be £69m per year. The additional costs would include, for example, installing work computers in employee homes and taking on further workers to cover the gaps no longer filled by the more flexible workforce, as well as additional overhead and administrative expenditure. It is little wonder that research from Alliance & Leicester Commercial Bank shows that almost a third of small business owners are concerned about the financial impact of the new law.

Unfair on the childless?

Costs are not the sole concern for employers, however. Some businesses fear that customer satisfaction will be affected. The new changes could mean that fewer employees may be available to enable client needs to be met during ‘normal’ working hours.

There is also the fear that childless employees will feel hard done by – more than two-thirds of business owners in Alliance & Leicester Commercial Bank’s survey felt that the new changes were unfair on childless workers. Businesses might, therefore, like to consider ways of redressing this balance.

The impact of the new changes may actually be less damaging than feared, however. The majority of requests from employees under the current regime generally only involve minor changes and this is unlikely to alter. For example, an individual may simply wish to start and finish an hour later. In addition, there is plenty of evidence to suggest that employers may actually benefit from the changes and even reduce costs in certain areas. For example, if more employees work from home, employers will require less office space. Flexible working could also lead to a rethink of the office environment generally.

Many feel that the changes will help make businesses more competitive: employers will be able to make services available to clients outside traditional working hours and through operating from a variety of locations over a longer period of the day, businesses may be more able to adapt to changes in the market.

But perhaps most important of all, it is likely that the workers will become more productive, says CIPD chief executive Jackie Orme.

“All our evidence shows flexible workers are happier, more engaged with their work, and therefore more likely to perform better and be more productive,” she says.

Be aware of the new changes

While businesses may feel the new arrangements are unnecessarily onerous, it is not possible to simply moan and ignore it since it will be upon us before we know it. Fortunately, the same procedure employed under the current legislation for making requests is likely to be followed, so it will still be possible to refuse requests for business reasons. As Walsh stated in her report, the only obligation is the right for an employee “to have a sensible conversation with their employer and have their request properly considered”. Nevertheless, all organisations will need to be aware of the new changes and have procedures in place to implement them.

Employers will need to evaluate which of the flexible working arrangements they will be able to accommodate, preferably in advance of any request. This will vary according to the size and nature of the organisation. For example, it would probably be impractical to allow a City trader to work different hours, whereas it might be possible for an administrator to do so or even to introduce a job-share arrangement.

All employers will need to put procedures in place to monitor the flexible arrangements to evaluate their success. They will need to be properly managed or businesses will find themselves short of staff. Acceptance of too many requests may be regarded as generous, for instance, but would it then make the business more difficult to run? Do not feel requests all need to be accepted. Positions need to be carefully considered on a case-by-case basis. Before rejecting the request, a trial period could be allowed if there is uncertainty over whether it will work. That way an employer could not be accused of dismissing a proposal out of hand and thereby of discrimination or breaching the regulations. In addition, employers will need to reconsider IT requirements: flexible schemes generally lead to less face-to-face contact, and, therefore, effective communication is vital.

Set ground rules

If a policy is not already in place to deal with homeworking, it would be wise to draft something specific. The policy should deal with health and safety issues of working from a home environment and IT setup, and also set out some ground rules to deal with practical matters such as childcare arrangements and availability at set times during the day.

Employers should also try to continuously monitor this area of law, as it is constantly evolving. For example, the Children, Skills and Learning Bill, to be put before Parliament this year, will include provisions to give employees with a minimum of 26 weeks’ service the right to request time off work for training – legislation which came about after government research showed that eight million workers receive no training, and more than one-third of businesses fail to train their employees adequately.

While the expanded flexible working arrangements may initially have cost implications, they will, if correctly handled, have a positive effect both on the way your business is perceived in the market and in terms of the morale of the workforce as a whole. It is important that businesses fully understand the new changes and prepare themselves accordingly.

Laura Livingstone, partner, and James Ogilvie, trainee, Davenport Lyons

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