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Beating the fear factor – Flexible Working

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BY CERI WIDDETT


Beating the fear factor with flexible working

Beating the fear factor. Flexible working provides clear benefits to working mums with childcare commitments. Flexible working also provides clear benefits to employers including:

  • Increased productivity
  • Reduced absenteeism
  • Reduced staff turnover
  • The retention of skilled and experienced staff
  • Increased staff loyalty

All of which can, “…in turn translate into improved productivity and by extension improved profitability”

Yet despite the clear benefits to employers they continue to be a reluctant to fully embrace flexible working arguing that it is not consistent with the 9 to 5 of business and that it shows a lack of commitment to work. This belief sends the clear message that young mothers are not valued in the workplace. Furthermore, it discourages working mums from making a request to work flexibly. The opportunity to demonstrate to their employer the benefits of flexible working and change their attitudes towards flexible working are therefore lost. As a result working mums continue to remain underemployed, unemployed and employed below their skill level. Hopefully, the following legal guide will encourage and help the many working mums who would benefit from flexible working to make a request and demonstrate to employers the clear economic benefits of flexible working.

THE LAW

What can flexible working include?

Flexible working isn’t just a late start and early finish, it can include one, or any combination, of the following working arrangements:

  • Part-time working
  • Term-time only working
  • Flexi-time
  • Compressed hours
  • Annualised hours
  • Working from home
  • Time off for breast feeding
  • Job sharing

How to make a flexible working request

The employee must write to their employer setting out:

  • That it is an application for flexible working
  • What changes you want to your hours or place of work
  • The date you want those changes to start from
  • What effect you think it may have on your employer’s business
  • How you think your employer could deal with that effect
  • Whether a previous application has been made (you are only allowed one request per year)

The letter must be signed and dated. It’s a good idea for the employee to keep a copy of the letter and send it by recorded delivery so that there is an independent record of the date sent. The employee doesn’t have to set out the reasons for the request but it might be better to do so.

Does your employer have to agree to a flexible working request?

There is no right to have the request granted but the employer is required to consider a request in a reasonable manner and notify the employee within three months of their decision. An employer can only refuse a request if it considers that one or more of a number of specified grounds applies:

  • The burden of additional costs
  • The detrimental effect on ability to meet customer demand
  • The inability to reorganise work among existing staff
  • The inability to recruit additional staff
  • The detrimental impact on quality
  • The detrimental impact on performance
  • The insufficiency of work during the periods the employee proposes to work
  • Any planned structural changes

An employee seeking to make a request would be advised to deal with each of these matters in their request letter.

Proper consideration by the employer of these matters at the time that the request is made is required. Good practice would require the employer to:

  • Deal with any request promptly
  • Hold a meeting to discuss with the employee the impact upon the employer’s business and ways to avoid that impact
  • Allow the employee to be accompanied at that meeting
  • Take a written note of the meeting
  • Inform the employee in writing of the decision setting out the reasons relied upon

What if your employer doesn’t agree to your flexible working request?

There is no right of appeal to the employer if a request is refused but the employee can put in a grievance, which the employer ought to deal with in accordance with its own grievance procedure. Workplace mediation may also be available.

From April 2014 it has been compulsory that employees first contact Acas before issuing a claim in the employment tribunal. Acas will then consider if the claim can be agreed between the parties without the need for proceedings to be issued. Acas ought to be contacted by the employee as soon possible after the request is rejected.

The employee does have the right to bring a claim before an employment tribunal if the employer fails to consider the request reasonably and/or within three months. The employee may also have the right to bring other claims.

There is a strict time limit for claims to be issued in the employment tribunal. Claims have to be lodged within 3 months of the employer’s decision.

Fees are now payable for all claims issued. The current fee for issuing a flexible working request claim is £250 with a further £950 for the hearing subject to any right of remission. These recent changes mean that for many low paid workers who are not entitled to remission the prohibitive cost of issuing a claim is such that they are effectively now denied access to legal justice.

What can the employment tribunal order?

The employment tribunal can make a declaration that the employer has breached the regulations. It can also order compensation not exceeding a maximum of eight weeks’ pay subject to a maximum weekly wage of £464. The maximum amount that an employment tribunal could award is therefore £3,712. The tribunal cannot make the employer accede to the flexible working request.

Further guidance can be found at: http://www.acas.org.uk/flexibleworking

Conclusions

If employers are to be made aware of the benefits of flexible working, working mums need to be supported and encouraged to make requests for flexible working. Only then will their employment outcomes improve and their potential in the workplace be unlocked.

*Originally written in 2015.

 

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