The benefits of working within the law

Jonathan
Bryk outlines the legal issues surrounding the introduction of flexible working
schemes

Although
the term ‘flexible working’ is becoming increasingly commonplace, it covers a
number of different arrangements. Flexible working can be of great value to
both employers and employees, so most businesses should at least consider the
various possibilities.

What
is meant by flexible working?

Flexible
working is generally understood to be an arrangement whereby an employer offers
employees the choice of when and how they do their work, rather than insisting
upon the traditional nine to five working day. Working from home, flexible
working hours and job sharing are among the options such schemes may allow.

Although
employees clearly gain from flexible working schemes, employers also benefit
from the greater ability to organise their labour resources in relation to the
demands of their businesses. Such schemes also help boost morale, often
resulting in increased productivity.

What
type of employer uses flexible working?

The
use of flexible working, either on a formal or informal basis, has been widely
adopted in all sorts of organisations – from small businesses and sole traders,
to large PLCs and partnerships.

The
main drivers behind introducing a flexible working practice include:

·           Requests from employees

·           Personal experiences of
employers/managers

·           Industry trends

·           A tool for recruiting and retaining
personnel

Considerations
when implementing a flexible working practice in the workplace

There
are a number of factors that often deter employers from introducing flexible
work practices. These include:

·           The work involved in complying with
laws and regulations concerning the implementation and maintenance of a
flexible working practice

·           The potential of a short-term loss of
business

·           The potential for a short-term fall
in productivity

·           The problems of substituting certain
skills if an employee is unavailable

·           Managing and administering the
flexible workplace

To
overcome such objections, the following issues should also be considered by
employers contemplating flexible working practices:

·           An increased understanding of the
potential long-term benefits

·           Improving communication between the
employer and employees

·           Better use of technology

·           Better training for the employer and
employees

The
legal considerations employers must take into account before implementing a
flexible working scheme are outlined below:

Constructive
dismissal:

To
create flexible working practices, it will be necessary to change or vary
current terms of employment. Technically, if terms of employment are changed
without consent, an employee may be able to claim constructive dismissal even
though they may benefit from the change. Therefore, an employer must ensure the
appropriate consent is obtained from the relevant employees. Alternatively, an
employer can invite employees to adopt a flexible working approach as opposed
to enforcing a policy.

Discrimination:

An
employer must ensure it is not discriminating on the grounds of sex, race or
disability when it creates a flexible working policy. If, for example, an
employer only offered the benefits of flexible working to females, a male
employee may have a case for sex discrimination.

Part-time
workers:

As
a consequence of the Part Time Workers (Prevention of Less Favourable
Treatment) Regulations 2000, an employer must ensure that it does not treat
part-time workers less favourably than full-timers. If a flexible working
practice is introduced for the benefit of full-time staff, all part-time staff
should benefit as well. The only exclusion set out in the regulations is where
less favourable treatment can be justified on the objective grounds that the
treatment was necessary and appropriate to achieve a legitimate business objective.

Fixed-term
workers:

Similarly,
an employer will need to consider the consequences of the new Fixed Term
Employees (Prevention of Less Favourable Treatment) Regulations 2002. The
regulations impose a duty on employers to ensure that the terms and conditions
of their fixed-term workers are no less favourable than the terms of their
permanent employees. Accordingly, when implementing flexible working, an
employer should ensure that all workers receive the same benefits.

Ultimately,
a flexible working policy has the potential to be of great benefit to employers
and employees, so long as care is taken over any legal and practical issues
that may arise during planning and implementation.

Jonathan
Bryk is a solicitor in Howard Kennedy’s employment department.
Contact 020 7546 8879 or e-mail j.bryk@howardkennedy.com

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