Following press reports today that the government will be holding a consultation on extending the right to flexible working, the effect of the pandemic on working practices and the recent high profile tribunal case of Thompson v Scancrown Ltd T/a Manors, the concept of flexible working is now very much a live issue and relevant to all employers.
According to the CIPD, flexible working is not as widespread as many may think; 46% of employees have no access to it, and nearly 20% of respondents said their employers did not offer the option. This is despite research suggesting that those with access to flexible working are around twice as likely to be satisfied in their job compared to those who do not have access, which in turn can boost productivity and staff retention. It also noted that of those businesses that do offer flexible working, a 4-day week has become increasingly commonplace. Further statistics create a more confusing picture, but given this information, and particularly with labour shortages now as they are, it makes sense for employers to consider flexible working wherever it is practical.
The current position is that with the exception of agency workers, employees have a legal entitlement to request flexible working arrangement once they have been in post for 26 weeks. A request could be for part time or compressed hours, an altered work pattern, term time working, remote working or a flexi-time arrangement. Essentially, almost any kind of regular flexibility. However, dealing with a request the wrong way can have painful and costly consequences, particularly if linked to a potential discrimination issue. Today’s indications are that the 26-week rule is to be abandoned with rights arising from the first day of employment, but this is to be subject to a consultation yet to be published.
The key point is that the employee’s right is to be able to make the request and, once made, for the employer to give it due consideration. This means that requests should not be dismissed out of hand, as appears to have been the case in Thompson, in which the employee seeking a slight change to working hours to fit in with child care arrangements was awarded £185,000 against her estate agency employer (the award was sizeable because the employer was held to have discriminated against the employee).
Rather, the request must be treated seriously and, for example, should not be rejected simply because the employee has no other reason for making the request other than simply preferring to work in that manner. It is important to note that the employer is not obliged to agree a request and indeed there may be many good business reasons for refusal set out in the legislation. Bear in mind the upsides of the process; the opportunity to review how the employee has been working and the benefits both to the employee and to the business, realistically balancing the positives against any perceived negatives.
Whilst there is a formal process, it is limited to format of request and reply. There is no rule that prohibits discussion and negotiation and no prohibition on setting conditions either generally or for a period of time subject to any other employment law relevant to discrimination. It is always best to keep records of the reasoning behind a decision. Also, it would be helpful to have a flexible working policy in place to provide assurance on this issue and to demonstrate the employer’s approach to flexibility.
Post-pandemic, many employees will be used to home working or working different hours and so a refusal to acknowledge this particular employee right may engender some criticism and negative press. On the flip side, promoting flexibility may well be beneficial to morale and provide better work outcomes in the workforce in the long run. Either way the right is here, and it’s here to stay.
The author of this article is Theresa Mimnagh, associate director of Lawspeed. Lawspeed group corporate clients benefit from immediate up to date advice on any recruitment sector or employment matter, contract review/negotiation, terms of business and IR35, self-employment, CIS contract templates, trade membership, government representation, accreditation services and an advanced digital contract platform.
For more information, advice on employment law issues such as flexible working or suitable contract templates call Lawspeed on 01273 236236