The changes to flexible working - nuisance or opportunity? - Goldenleaver
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On 30th June 2014, more employees will have the right to request flexible working.  Currently, an employee needs 26 weeks’ continuous employment, and the request must be to care for a child 17 years or younger (18 years if they are disabled) or for an adult. 

As from the end of this month, the only requirement is to have 26 continuous weeks’ employment, and the request can be to do anything from caring for a child to improving a golf handicap.  How will this affect the workplace?

Ultimately, this change is good for business: firms will be able to retain their best staff.  And it’s good for our economy: a modern workforce is a flexible workforce

Nick Clegg (Deputy Prime Minister) 12th November 2012

The workplace now is a different place to what it was only a few years ago.  Then, if an employee was on holiday, they were pretty much uncontactable and the first few days back would involve catching up on emails (or snail mail and faxes!) and on what had happened in the office whilst they were away.  Now, most office-based employees (based on a straw poll of colleagues, friends and family) regularly check emails on their phones whilst away and are up to speed on their return.  It is also far harder to ‘switch off’ outside office hours (with the exception, perhaps, of France, where there is a trend to require employees not to deal with work matters outside their contracted working hours) and there is a greater expectation on employees to ‘make themselves available’.

In light of this, it is not surprising that the quid pro quo is a right to have greater flexibility about how employees work – for example, by a change in working hours or place of work.

Although the extended right to request flexible working starts on 30th June 2014, many employers have agreed flexible working for all for some time, and things are not all bad.  There are in fact a number of reports and surveys to support the benefits of flexible working:

  • Productivity increased – CISCO in 2010 reported that employees who worked from home were 50% more productive than in the office and Sainsbury’s saw a 65% increase in bread sales in one store when staff developed their own flexible working schedule to meet customer demand.

  • Stress reduced – in a survey of 24,000 IBM employees those with workplace flexibility worked an extra 19 hours per week before reporting the same levels of stress as office-based staff.

  • Cost savings – BT estimates that 75% of its staff are on flexible work schedules and the cost savings are valued at over £70m a year.

  • Recruitment and retention – PwC’s 2010 report ‘Managing Tomorrow’s People’ found that the top benefit sought by professionals in the UK was flexible working.

Those employers who find flexible working enhances their businesses see flexible working not just as a policy, but as a different way of working for all.  However, flexible working will not suit all roles in a business and each request must be considered on a case by case basis.

There are some key elements to consider when looking at flexible working in your business:

  • Infrastructure – ensure you have the IT that allows employees to work outside of the office with ease.  If an employee who is working from home one day a week cannot get onto the IT system then this arrangement will not work and will be frustrating for both employer and employee.

  • Communication – have a consistent approach and do not neglect face to face meetings.  An issue with employees working from home is that there is less face time with the team. Spontaneous ‘chats around the water cooler’ can be very productive and by not being in the office, this can be lost.  Ensure that the lines of communication are open between colleagues as well as line managers and reportees – try ‘Skype’ ‘face time’ and regular meetings as a team in the office.

  • Establish clear rules and expectations – flexible working is often one-way and is criticised for being inflexible i.e. the person leaves the office at 1pm leaving unfinished work to be picked up by disgruntled colleagues.  It is important to lead from the top and agree new ways of team working so that this type of scenario is avoided and that any issue like this is picked up quickly and dealt with before it becomes a much bigger problem.

  • Reviewing – don’t forget that any changes can be made on a trial basis and then refused if they don’t work out; but that any changes that are then confirmed will permanently change the employee’s terms and conditions from then on (unless there is a further agreement).

Now that the right to request flexible working is extended to all, what about competing requests for flexible working? How are they to be dealt with?

What if on a Monday morning, three reports carrying out the same role ask for part-time working?  One employee has requested it in order to look after her child who is 18 months old, another has requested it because he is finding the daily commute harder now that he is 65 years of age, and the third would like time to work on a volunteer basis for a charity helping disadvantaged urban foxes. 

If the employer is unable to accommodate all the requests, should they give preference to requests from certain groups i.e. parents?  The Government decided against prioritising, as this would not show that flexible working is for all, not just parents and carers, and could be counterproductive.

So, as there is no scope for prioritising requests, an employer can take into account any features of a flexible working request that it wishes, such as caring obligations or accommodating a disability, that may limit the employee’s ability to vary the working arrangements they have requested.  This is unlikely to allay fears among employers that they can leave themselves open to allegations of discrimination where they prioritise some requests over others.

The Acas Guide makes the following observations and suggestions:

  • When an employer receives more than one request, it is not required to make value judgments about the most deserving request. It will need to look at each request on its merits in the context of its business.
  • Requests should be considered in the order in which they are received. It may be possible to grant all of them. However, before making a decision the employer will need to consider the impact on its business of doing so. The employer will also need to remember, having accepted the first request, to take account of the changes this will make to the business context when looking at the next request.
  • Alternatively, the employer might want to have a discussion with each of the employees to see whether, with some adjustment or compromise by all of them, each can be accommodated. If this does not provide a solution, the employer may want to consider the position of those members of its workforce that already work flexibly and consider whether with some adjustment or compromise on their part (should they be willing to vary their arrangements) everyone can be accommodated.

Inevitably in the above scenario the employee who cares for disadvantaged foxes is unlikely to have their request granted over and above the other two employees who could have potential sex and age discrimination claims against the employer.   However, perhaps in the future, the working world will have moved on even further so that concerns over competing requests are a thing of the past.

Caroline Leaver