Flexible working gives the opportunity for employees to have flexibility on how long, where and when they work. The main way in which this flexibility can be achieved is through a statutory flexible working request, part of a scheme that was set out in the Employment Rights Act 1998. However, this was amended by the Children and Families Act 2014, making the procedure much simpler.
Any employee with more than 26 weeks’ continuous employment is eligible to make a written request to change their existing working arrangements. These requests can ask for a range of adjustments including a change to the hours that they work, a change to the times when they are required to work and a change to the place of work. Therefore, the benefits of flexible working for the employee are clear as it enables them to shape their work-life in a way that suits their personal life.
However, it is important to consider why employers would choose to accept these sorts of requests and therefore leads us to question how flexible working can be beneficial to businesses.
Staff retention is the most obvious benefit as most employers would be more willing to accommodate some level of flexibility instead of risk losing good employees. Furthermore, the day-to-day life of the average person is rapidly changing and the introduction of flexible working in the workplace is one of the ways in which businesses can evolve alongside these changing customer bases. This adjustment can therefore be beneficial when trying to accommodate the demands of clients who do not have a traditional 9 to 5 lifestyle.
The adoption of flexible working also allows employers to support and nurture their staff. By listening to their workers’ needs, employers can demonstrate that they care for their staff. This is becoming increasingly important to prospective employees and has significant benefits for staff retention.
Another, less obvious potential benefit, is increased productivity. A study by Ernst & Young has found that women working part-time are the most productive members in the workforce as they waste less of the time that they spend at work. The study found that these individuals wasted just 11.1% of their time compared to 14.5% for the rest of the workforce.
By supporting employees, businesses make themselves more appealing to potential candidates, particularly with the rise of ‘company review websites’ and employee recruitment surveys where current staff can ‘rate’ your business. Adapting this level of flexibility can also be beneficial for recruitment of the younger, millennial generation because one of the prominent characteristics of this generation is a strong desire for a better work/life balance than previous generations. Moreover, millennials are more intent on being equal partners within their own households, meaning childcare duties are more likely to be shared and both partners would therefore require flexible working arrangements.
On the other hand, there are also several risks to employers regarding flexible working. Potential discrimination issues are one of the biggest factors. For example, some eligible employees may make a request for flexible working for reasons which, if their request is refused, give them a claim under the statutory flexible working provisions but do not make available any other form of redress. Cases of this kind usually revolve around issues regarding childcare commitments, religious requirements or employees who are seeking adjustments because of a disability. It is important that employers are aware of these potential issues when considering a simple flexible working request.
Since 1998 it has been possible for women whose requests for flexible working are rejected to seek redress by making a sex discrimination claim. This has been a most effective remedy for women and claims for sex discrimination often succeed even if the original claim for breach of the flexible working procedure fails. A prominent risk factor surrounds women leaving for or returning from maternity leave. However, men can also claim direct sex discrimination as many employers tend to look more favourably on requests by women than those by men. This happened in Walkingshaw v John Martin Group, where a man was denied the right to work part-time following his wife’s maternity leave and claimed direct discrimination because women in his firm were regularly allowed to work part-time.
In order to identify and avoid this risk, it is advised that employers meet with the employee to discuss the request, even though this is not a requirement of the legislation. This allows the employer to better understand the issues of the case and can lead them to consider adjustments other than changing working hours, such as redistributing responsibilities within a team.
Flexible working requests are only going to become more and more common as demands for greater flexibility and a better work-life balance increase. Therefore, it is important that employers are aware of the risks surrounding these requests but also of their benefits to the workings of their business and its image.
If you are an employer looking to better understand this area of law, or an employee wondering what your rights are, please do not hesitate to contact our Employment Team for assistance.