Employment Solicitors

In November 2012, the Government issued its Response to its own Modern Workplaces Consultation, to extend the right to all employees (with a qualifying period of 26 weeks of employment) to apply to their employers for flexible working conditions. At the present time, the right applies to an estimated 3.8 million employees, who have child-care responsibilities for children up to the age of 17 years old and who care for certain adults (both subject to a qualifying period of 26 weeks of employment). In the Government’s Foreword to the Response, they state that they want employees to be able to manage their time, so that work fits in with their lives, rather than work taking over their lives. They state that such a philosophy will contribute to employees’ wellbeing, while at the same time assist employers to recruit, motivate and retain their workforce, leading to successful businesses and an increase in productivity.

It would appear from the Response that the Government are of the view that most employers take a negative view of non-qualifying employees, making requests for flexible working arrangements. If this is correct, at first glance, the Response appears to be a positive move forward to industrial well being, but in reality will it achieve its aims or will it lead to disputes? Only time will tell. A pessimistic observer would point out that in any event, it is open to all employees to make a flexible working request to their employers and to pursue it using the employers’ Grievance Procedure. Although this is true, the proposed changes are aimed at instigating more requests and will provide for a specific Statutory Code of Practice that places a duty on an employer to deal with a request in a reasonable manner and within a reasonable period of time.

In the modern workplace, within reason, it is feasible for employees to work at any time, from anywhere and on any working pattern. The problem is such varied working practices provide challenges to employers, who understandably struggle to adopt them and to release control of the established “9-to-5” office based environment. If employers are able to focus on the perceived rewards, there is a real hope that proposals will catalyse a real change to flexible working arrangements.

As part of the proposals the Government wants to simplify the current procedures, where by qualifying employees can request flexible working arrangements. The current law is set out at section 80 F – I of the Employment Rights Act 1996 and is expanded in various Statutory Instruments. In order to implement this law, most employers have a Flexible Working Policy, which provides for meetings, written decisions and an appeal process. It is envisaged that if the proposals are implemented, these procedures will be replaced with simpler ones.

Employers can rest assured that they will not be forced to implement unreasonable flexible working requests. Under the present law, on considering requests, employers can reject them for a wide variety of reasons, as per section 80G of the 1996 Act - these include reasons relating to a burden of additional costs, inability to recruit staff, and a detrimental impact on quality. It is envisaged that employers will continue to have a wide scope for rejecting unreasonable requests. If the thinking behind the proposals is correct, good employees with move to and/or be retained by employers, who are willing to accommodate reasonable requests and in turn who will flourish.

By David Head