Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Employment lawDismissalEmployment contractsFlexible workingRecruitment & retention

Legal opinion: Flexible working in the age of austerity

by Personnel Today 10 Jan 2011
by Personnel Today 10 Jan 2011

For many years there has been a general consensus that Europe and the UK have different approaches to employment law.

This consensus is that the UK tends to emphasise individual rights whereas Europe favours a more collective agenda. This is often allied with the idea that the collective approach is damaging to business. This contrast between collective and individual rights raises questions about how the UK will cope with the recently implemented austerity measures and whether or not a more collective approach might benefit the UK economy.

The employment relationship is governed by a contract of employment, which is an arrangement between an individual and the employer. The individual employee is entitled, in law, to insist on his or her individual rights under the contract regardless of the impact on the business or the workforce generally. In some cases employers introduce a “flexibility” clause into the contract. This might say something like “you will perform job A and any other duties that may reasonably be required of you”.

It might be thought that this would allow the employer a wide degree of latitude in assigning the employee to other duties. However, a clause in these terms has been held (in Land Securities Trillium Ltd v Thornley [2005] IRLR 765 EAT) to mean that the duties required of the employee must be reasonable solely from the perspective of the employee and not reasonable in terms of weighing up the needs of the business and the interests of the employee. That is to say, the court adopted a very strict interpretation of the contract in order to protect the individual employee’s rights.

Of course, in practice, many employers have been able to persuade employees to work part time, take a sabbatical or even take a pay cut in order to protect jobs. The extent to which the public sector might be willing or able to do this in the way the private sector has in the past is unclear. However, it is still possible, in theory, for individual employees to hold out against any change to their individual contracts of employment.

A similar issue arises in relation to retirement. In most cases of discrimination, the individual right not to suffer direct discrimination trumps any business interests. In the case of age discrimination, the position is different because it is possible to justify direct age discrimination. This means that it is possible for an employer to compel an employee to retire (even after the abolition of the default retirement age (DRA)) if it can show that retirement is a proportionate means of achieving a legitimate aim. This might include, for example, the needs of the business and succession planning. However, the way justification has been interpreted by the UK courts has been very strict.

It has become clear that in the UK it is necessary to produce detailed evidence to support any argument of justification. So, for example, it has been held that it was not justified to require the holder of judicial office to retire at the age of 65 and it was not justified to require a professional football referee to retire at the age of 48. In contrast, the European Court has not only allowed the compulsory retirement of dentists at the age of 68 but also upheld a requirement that those who join the fire service in Germany must be under the age of 30 years.

One issue that may become prominent in the coming years is the extent to which offering an employee at, say, the age of 65 a different job, with perhaps lower pay or reduced hours, may be justified. It is not yet clear whether or not it may be possible to justify requiring older workers to work differently and accept lower pay in the interests of the business as a whole. While the CBI has lobbied the Government to delay the abolition of the DRA, one idea that has not yet been considered is the possibility of a statutory mechanism to allow for a more flexible approach to older workers.

In both Europe and the UK collective bargaining has, traditionally, been highly confrontational. The experience in the private sector in the recent recession was that a more collaborative approach did enable many jobs to be saved, albeit at the expense of other benefits and rights. This benefited not only the employees but also employers who have saved on redundancy costs and retained skills in the workforce. While the trade unions in the UK have, on occasion, shown themselves to be open to discussions about flexible working to save jobs, there is also some responsibility on employers to think creatively about the use of flexible working.

While it would, in theory, be possible to legislate to allow for the imposition of flexible working, with suitable protections, it currently seems unlikely that the coalition Government will attempt this. Nonetheless, it seems probable that employers may be able to make increasingly sophisticated use of a variety of forms of collective bargaining to persuade employees to accept more flexible ways of working.

Paul Lambdin, partner, Stevens & Bolton LLP

Sign up to our weekly round-up of HR news and guidance

Receive the Personnel Today Direct e-newsletter every Wednesday

OptOut
This field is for validation purposes and should be left unchanged.

Related information

  • HR Austerity Panel: Reaction to the Comprehensive Spending Review

Guidance and FAQs from XpertHR

  • What procedures must an employer follow if it needs to cut employees’ pay?
  • If, as a cost-saving measure, an employer asked its employees to work fewer days or shorter hours, can it require them to revert to their previous working pattern?
  • After the abolition of the default retirement age, employers will have to justify objectively having a compulsory retirement age. What does this mean?

Personnel Today

previous post
HR Consultant Services Ltd branches out
next post
The entrepreneur behind Poundland kicks off new national retail venture

You may also like

Immigration white paper: which jobs will be affected?

19 May 2025

Minister defends Employment Rights Bill at Acas conference

16 May 2025

Workers ‘wait and see’ as companies struggle to...

16 May 2025

CBI chair Soames accuses ministers of not listening...

16 May 2025

EHRC bows to pressure and extends gender consultation

15 May 2025

‘Polygamous working’ is a minefield for HR

14 May 2025

Contract cleaner loses EAT race discrimination appeal

14 May 2025

Four ways employers can reduce the risk of...

14 May 2025

Immigration white paper: 10 key points and reaction

12 May 2025

So what does the election of a new...

9 May 2025

  • 2025 Employee Communications Report PROMOTED | HR and leadership...Read more
  • The Majority of Employees Have Their Eyes on Their Next Move PROMOTED | A staggering 65%...Read more
  • Prioritising performance management: Strategies for success (webinar) WEBINAR | In today’s fast-paced...Read more
  • Self-Leadership: The Key to Successful Organisations PROMOTED | Eletive is helping businesses...Read more
  • Retaining Female Talent: Four Ways to Reduce Workplace Drop Out PROMOTED | International Women’s Day...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2025

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2025 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+