Legal opinion: Five steps to making flexible working a success

The right to request to work flexibly, introduced under the Employment Act 2002, was not universally well received by employers. However, a recent CBI survey found that 96% of employers offer at least one form of flexible working. In addition, among the Government’s proposals in the Consultation on Modern Workplaces published in May was the extension of the right to request flexible working to all employees who have 26 weeks’ continuous employment. Solicitor Rebecca Hill looks at how to implement flexible working successfully.

Employers seem to be alert to the fact that employees are subject to demands outside of work and, given the potential benefits of improved employee relations, lower absence rates and improved productivity during hours actually worked, many employers are willing to confront any practical issues to implement a flexible working system that works.

Flexibility in the workplace can include part-time working, job sharing, flexitime and working from home. The current statutory right requires that requests from an eligible employee (parents of children under 17, parents of disabled children under 18, and some carers, who have 26 weeks’ continuous employment) to work flexibly must be considered.

The legislation recognises that an employer may have legitimate business reasons why it cannot accommodate a specific flexible working request. These specific grounds for rejecting a request are the only grounds that may be relied on and include (among others): the burden of additional costs; detrimental effect on ability to meet customer demand; and insufficiency of work during the periods the employee proposes to work.

An employee may make a complaint to an employment tribunal if the employer: fails to deal with the request in accordance with the statutory procedure; refuses the request for a reason other than one of the specific grounds; or bases the decision to reject the application on incorrect facts. It is also open to employees whose requests for flexible working are rejected to seek redress by bringing a sex discrimination claim (and the rejection of a flexible working request which amounts to sex discrimination may well amount to a fundamental breach of contract entitling the employee to resign and claim constructive dismissal).

When implementing flexible working, employers face several challenges, including balancing customer/client and employee demands. However, it should be possible to implement a flexible working system that works with the following five steps:

1 Understand your business – consider both what is right for your organisation and where your employees’ needs lie (not all flexible working arrangements will work well in sectors where a core staff must be present in the workplace).

2 Follow the statutory right to request procedure – ensure that all time limits are met.

3 Demonstrate serious consideration of the request – seek the views of management (and other employees) on the potential effects of the new work pattern in addition to considering whether or not there are any alternatives.

4 Ensure consistency when dealing with requests – avoid allegations of discrimination.

5 Try it out – if there are concerns whether or not flexible working is feasible, have a trial period of the proposed working arrangement.

Rebecca Hill, solicitor, Blandy & Blandy








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