Challenges faced by flexible working legislation

By Simon Rice-Birchall
Partner, Human Resources Group, Eversheds Leeds.

Telephone: 0845 498 4978

Email: simonricebirchall@eversheds.com

Simon Rice-Birchall discusses how legislation surrounding flexible working is affecting parents and business leaders.

The right to request flexible working will be extended to parents of children aged up to 16, the Government has announced.

The move will give an extra 4.5 million parents the right to request flexible working hours.

The right to request flexible working was introduced under the Employment Act 2002  and came into force on 6 April 2003.

Under the Act, the right to request flexible working is available to employees with more than six months’ service in order to care for a child under six years old or eighteen years old if the child is disabled.

In 2007, this right was extended to carers of adults, although certain relationship criteria must be satisfied for the employee to be eligible.

In November 2007, the Government commissioned Imelda Walsh, Sainsbury’s HR Director, to undertake an independent review into the extension of the right to request flexible working to parents with children aged six or older and to make recommendations.

The review, which was published in May 2008, recommended that the right to request flexible working should be extended to those with parental responsibility for children up to the age of sixteen; and the extension of the right should be implemented in one go.

Ms Walsh said: “This change would offer an important opportunity for parents to have extra flexibility at key times in their children’s lives.”

The Government accepted these recommendations and will be consulting on how to implement the proposals.

In order to make a request for flexible working, an employee must meet the qualifying conditions and comply with certain procedural requirements.

Firstly, the employee must submit a written application.

If the request complies with the statutory requirements, the employer must arrange to meet with the employee within twenty-eight days of receiving the request in order to discuss the application.

Within fourteen days after the date of the meeting, the employer must then provide a written response to the application; if the request is unsuccessful, the employee must be allowed a right of appeal.

There are eight specific grounds on which an employer may rely to reject a request for flexible working. These are:

• 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; and
• Planned structural changes.

The employment tribunal penalty for breach of the flexible-working procedure cannot exceed eight weeks’ pay.

Commentators have therefore suggested that the right to request flexible working is a right without a remedy.

However, employer’s must consider the interrelationship with other existing discrimination legislation, in particular relating to discrimination on the grounds of sex.

An employee who requests a flexible working arrangement can potentially raise a claim under the Sex Discrimination Act 1975 if their request is turned down.

Generally employers acknowledge that the right to request flexible working has worked satisfactorily.

This is attributed to the fact that it is a request and not an absolute right.

Mike Emmott, CIPD advisor, employee relations, said: “Our research shows that part-time and flexible workers are happier, more engaged with their work, and therefore likely to perform better and be more productive. And in a tight labour market, flexible working is part of the package that can help recruit and retain the talent organisations need to deliver their objectives. It is therefore unsurprising that a great many employers, large and small, go well beyond the legislative minimums and allow employees to work flexibly regardless of their family status.”  Indeed, around six million employees currently have the right to request flexible working, but over 14 million employees, including part-time workers, actually work flexibly.

However, there has been some resistance to the changes.

Federation of Small Businesses chairman Alan Tyrell said: “The current flexible working regime seems to be working but the government should be cautious about extending it too far which could be damaging to small businesses and, as a result, the millions of people they employ.” 

We await the government consultation to see how and when this extension will be implemented in practice.