Flexible working: what does it mean?

It’s fair to say that there is a lot of confusion around flexible working. All employees have a right to ask for it, but not every employer can concede. Why? Chris Brazier, senior associate, B P Collins, provides the answers.

What does flexible working mean?

Since 30 June 2014, all employees who have worked for their employer continuously for 26 weeks have the statutory right to ask if they can work flexibly in order to suit their needs. This can be in a variety of different ways such as carrying out some or all of their work at home, part-time working, flexi-time, shift work or job sharing. An employer will usually have to respond to a request within three months of the application being submitted.

Flexi-time increased by over 12% between 2012 and 2016 according to the Office of National Statistics (ONS), and in 2016, the TUC found that the amount of people working remotely had increased by 241,000 over the past ten years. So there are many employers in the UK, who are allowing their employees to work flexibly as such arrangements can save the business money, as there is a reduction in office running costs; productivity is proven to increase and staff morale surges - particularly as a stressful commute can be avoided (which is also great for the environment).

Not every employer agrees

Research funded by the Joseph Rowntree Foundation in 2015, found that a staggering 14.1 million British people want flexible working. It seems that some employers - after having to show that they have properly considered requests - are using the statutory framework to turn them down, citing one of the following reasons:

• the burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to re-organise work among existing staff;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• insufficiency of work during the periods the employee proposes to work;
• planned structural changes; and
• such other grounds as the Secretary of State may specify by regulations.

This makes it all the more important that employees give considered thought to a request before making it (particularly around how they consider the new working arrangements will work in practice) to encourage the employer to engage in the process. Similarly, employers need to have evidence to support an argument that a flexible working proposal falls within one of the nine grounds listed above.

Challenging your employer

An employee who has their application for flexible working rejected can complain to an employment tribunal on the grounds that:

• the employer failed to consider the flexible working application in a ‘reasonable manner’;
• the employer failed to notify the employee of the decision on the application, including any appeal, within three months of the date of the application;
• the application was refused on a ground that is not a valid business reason;
• the decision was based on incorrect facts; or
• the employer sought to treat the employee’s flexible working request as withdrawn without having good grounds for doing so.

Discrimination

Employers should also be aware of their obligations under the Equality Act 2010 and not inadvertently discriminate against an employee who has a protected characteristic, such as sex, disability or age. For example, by applying a provision, criterion or practice (for example, a requirement for staff to work full time or at certain hours) which puts employees sharing that characteristic at a particular disadvantage, actually puts the claimant at that disadvantage, and cannot be justified as a proportionate means of achieving a legitimate aim (the justification defence).

A common example is a flexible working arrangement requested by a woman following maternity leave. As she has primary responsibility for childcare and it is generally still held by tribunals that woman take on a greater share of this responsibility, if an employer cannot justify a decision to reject then the employer may face a claim for indirect sex discrimination.

Despite these challenges, flexible working isn’t going anywhere. In a survey by a leading recruiter last year, 50-60% of participating employers said that flexible working is an essential element in any job specification. In 2012 it was only 40%. Employees also have very different expectations compared to 20 years ago, with worklife balance being an absolute must for many. Offering or being receptive to flexible working will go a long way to achieving this goal.

Chris Brazier is an employment lawyer at B P Collins. For further advice on flexible working, business immigration or other employment matters, please contact 01753 278660 or email chris.brazier@bpcollins.co.uk