The People Bulletin

Technology has played a significant role in the increased acceptance of flexible and remote working practices, but employers can sometimes find themselves tripping up over flexible working requests.  This article picks up issues addressed in earlier articles by Laurence Dunn in ‘Flexible Friends’[1] and ‘More employees entitled to request flexible working’ by Sophie Whitbread.[2]

Employers need to understand the basic right to request flexible working, the scope of the legislation in place and the practical impacts of offering flexible working arrangements to staff. So this article examines:

• Cultural changes that have driven a move towards more flexible working arrangements.
• What the legislation in place says and what the duties placed on employers are.
• The advantages of providing flexible working, for both employees and the employer.

Cultural changes

The move towards flexible working has been an increasingly important issue for HR in recent years, driven by a number of different factors.

There has been a push to increase diversity among the workforce as particular groups of workers have traditionally been disadvantaged by roles that require day-to-day attendance at a workplace. These workers who may have disabilities or family responsibilities may require certain adjustments to suit their working needs. Demographic changes have also been an influence, with stay-at-home mothers becoming a rarity and the workforce getting older. The latest squeeze on benefits announced by the DWP[3] to get more people back into the workplace is another factor driving workers not able to fit into traditional working patterns to seek roles that can be fitted around their personal circumstances.

Part of the debate about flexibility has also been fuelled by ongoing discussions around the need for employees to balance their home and work needs. By offering flexible working practices, employers will not only be giving employees an opportunity to work that may not have otherwise been possible, but they’ll also be able to attract a more diverse and talented workforce.

Other advantages for the employer include greater cost effectiveness and efficiency as they could save on overheads where employees are working from home.

What duties are imposed on employers?

The statutory right to request flexible working came into force for parents of children aged six and under (or 18 if the child is disabled) on 6 April 2003. This was further extended to parents of children aged 16 and under and adults with caring responsibilities on 6 April 2007.

Employers need to ensure their employees are aware of the following:

• Conditions of the right to request flexible working
  To qualify for the right to request, employees must have continuous service of 26 weeks and either have responsibility for a child aged 16 or under (18 if the child is disabled) or be the carer of an adult aged 18 or over. It is important to note that employees do not have automatic rights to work flexibly, only the right to request for flexible working. However, employers then have a duty to give serious considerations to these requests and failure to do so can result in discrimination claims.[4]
• Types of flexible working
  Those who qualify are entitled to ask for a change in their terms and conditions of employment, including the number of hours they work, the times they are required to work and their location. This could include requests for flexi-time, job sharing, part-time working, home working, shift working, and annualised hours.
• How to submit an application
  An employee must apply to the employer in writing. If made in relation to a child, the application must be proposed before the child’s 17th birthday (or 18th if disabled). It must also be dated, specify that it’s made under the right to request flexible working and explain how the employee’s relationship with the child or person being cared for meets the qualifying conditions. Employees must also outline details of the proposed change and when they would like to start their proposed amended new working pattern, explaining the effects it is likely to have on the employer and suggest how it can be dealt with. If a previous application has been made, employees must specify this.
• Employer procedure
  An employer that receives a request has a duty to give it serious consideration and follow a set procedure:
  • Within 28 days of receiving an application, the employer must hold a meeting with the employee to discuss it. If sent by post, it will be considered the day on which the letter is received. And if the person who considers the application is on leave, the 28-day period may be extended.
  • At the meeting the employee has the right to be accompanied by a fellow worker. They may address the meeting and confer with the employee during the proceeding but cannot answer questions on the employee’s behalf.
  • Within 14 days of the meeting, the employer must write to the employee with a decision. If the proposal is accepted, the employer must set out the new work pattern and when it will take effect.
  • If the employer refuses the request, the letter must give reasons why, which could include the burden of additional costs, inability to reorganise work among existing staff, a detrimental impact on performance and quality or an inability to recruit additional staff.The letter must also state the appeal procedure.
  • If agreement is not reached after following the right to request procedure, the employee may then use the organisation’s internal grievance procedure.
• Terms and conditions
  Any flexible working practices will be a permanent change to the employee’s contract of employment, unless otherwise agreed. Employees have no right to revert to their original working arrangement, and similarly, employers have no statutory right to require the employee to revert to their previous working pattern. The right to request flexible working can only be exercised once a year and all changes made to the employee’s terms of conditions of employment are permanent, unless agreed otherwise.

Introducing a flexible working policy

Organisations thinking of introducing flexible working practices need to consider:

• the current causes for concern and how well these are monitored and recorded;
• the motivation for introducing more flexible working practices and how change swill be measured and monitored; and
• the impact that flexibility will have on:
  • management;
  • administration;
  • efficiency;
  • other employees;
  • profitability; and
  • costs.

The employer can identify how certain jobs might lend themselves to flexible working, eg reduced hours or hours outside the normal working pattern. They can also identify those jobs where flexibility is unlikely to be practicable and begin to formulate the business case.

Employers will also need to consider the following questions:

• Will there be a need for new rules to manage the situation? If so, what, and who should draft them?
• How should managers respond to requests to work flexibly?
• How will ineffective changes be dealt with? Can the organisation retain the right to say no to requests for flexibility and to remove unsatisfactory performers from the scheme?
• Will there be a need for more training for managers and those working flexibly?
• If working from home is encouraged, how will routines such as appraisal and sickness notification, etc be dealt with?
• How often will initiatives be reviewed and who should take responsibility for them?

You can download a copy of a sample flexible working policy courtesy of Croner-i Human Resources here

Flexible working: theory into practice

Addenbrooke’s NHS Trust competes with well-paying large private sector employers in an area of low unemployment and high-cost housing, and has to work hard to attract and retain staff. Its investment in a flexible working policy supports its objective of being an employer of choice in the area. Addenbrooke’s is a three-star NHS Foundation Trust, employing some 6,300 people in Cambridge. The hospital’s workforce consists predominantly of women in the 23 to 35 age group, and flexible working is a real business driver.

Business Drivers
When Addenbrooke’s set up its first workplace nursery in 1989, it did so in a desperate but successful attempt to recruit and retain staff, and its policies on flexible working soon followed. It now provides 406 nursery places for 600 parents, around one in six of who work full time, and the appetite for flexible working continues unabated. The Trust also believes that staff who are happy with their work-life balance will be more motivated and productive.

Available Options
Although the Trust has had flexible working in place for over a decade, its formal policy was put in place only in 2001. The policy states that the Trust is committed to helping all staff, including medical staff, achieve work-life balance, regardless of personal circumstances, so flexible working is not restricted to parents of young children or carers. The full range of flexible working options is available. Home working is also possible. “Time out” schemes are available for up to 12 months. These can be for childcare, elder care, travel, voluntary work or study, and are taken as unpaid leave.

The process

There is a formal process for requesting flexible working at the Trust. Staff must complete a request form, which asks the following questions:

• How will you be able to continue to perform all current duties within the proposed working pattern?
• If you are not able to perform all duties, what duties will be affected and how do you propose to reallocate them?
• How does your request affect direct patient care; customer/client service; colleagues who may have to cover for you; contact with your line manager or any mentoring responsibilities?
• If you have management responsibilities, how will your proposal affect supervision; performance appraisal; training; communication and staff support?

Although there have to be good reasons for requests to work flexibly to be refused, these are not hard to find. For example, the number of staff already working part time or flexibly could mean that allowing a further request could create operational difficulties, and the effect on the working lives of other staff could also be problematic. Also some jobs require cover at specific times or full-time hours, where job sharing could be appropriate.

Problems
There was some initial resistance from a few managers who did not see the business benefits of flexible working, and who were not enthusiastic about the extra work involved. There was also cynicism from full-time colleagues, and some areas where the fact that so many people were working part-time caused difficulties in maintaining a service. Other difficulties arose because staff always expected to have their request granted, and managers were worried that they could not say no, even where there were good reasons why they should.

Costs and Benefits
Investment in flexible working has involved the time of the HR department in researching best practice and writing policies and in training managers. The return on this investment has been a reduction in sickness absence from 5.3% to 4.1% and a fall in staff turnover from 20% to 14.9% between 1997 and 2004. The Trust includes references to its flexible working policy in its recruitment literature and believes that flexible working has made a real difference to its ability to continue to recruit and retain staff. 

Future of flexible working

Employment Relations minister Edward Davey has announced that the right to request flexible working will be extended to parents of children under 18 from April 2011 – benefitting nearly 300,000 more people – while a consultation will be launched later this year looking at how to extend the right to request flexible working to all employees.

If that goes ahead working hours will more likely become a negotiable feature of many employment contracts. All employees will have rights to demand flexible hours and greater expectations to exercise those rights to fit into other interests and responsibilities. The challenge for employers is to accommodate the needs of the workforce without sacrificing effective management and business growth.

[1] The People Bulletin, 27 August 2009.   

[2] The People Bulletin, 28 April 2009.   

[3] www.dwp.gov.uk/policy/welfare-reform/ 

[4] For more on what to do if you are faced with a tribunal claim, see Michelle Gray’s article, ‘Going legal’ in The People Bulletin, 21 January 2010.