The Future of Flexible Working

Consideration of the granting of flexible working hours is now a responsibility of all employers but should it really be seen as an opportunity rather than a bind for businesses? Evidence suggests that employers who approach flexible working with a positive, open-minded outlook will benefit in terms of retention of valued workers, staff well-being, cost-saving and overall productivity, to list but a few advantages.

From June 2014 all UK employees (rather than only carers and parents, who were the group exclusively affected beforehand) were granted the right to request flexible working provided they had been with their employer for at least 26 weeks.

Accompanying this new ruling was the publication of the ACAS code of practice; a guide setting out how employers are to handle requests ‘in a reasonable manner’. The first and most obvious thing of note is that the guide uses the word ‘should’ (meaning that ACAS consider this to be ‘good employment practice’), considerably more than it does the word ‘must’ (used to indicate a legal requirement). For example, once an application to work flexibly is submitted, the employer ‘must’ consider it. The guidance then states that the employer ‘should’ discuss the request with the employee, ‘should’ consider it carefully, ‘should’ submit their decision to the employee in writing and so on….. This is a clear sign that there is still room to introduce more forcible legal requirements around the issue and it has led to some parties (for example, trade unions) calling for further change and legislation.

There is, generally, broad support for flexible working amongst employers. Still, amongst several discussions on the issue, there does sometimes seem to remain a split, living up to the traditional stereotypes of expected position, between employers – who do not agree that there was such pressing need for legislation and trade unions – who are not satisfied with the extent of the changes. Perhaps the loudest of the voices questioning the new legislation is amongst small business owners who understandably have concerns. John Allan (National Chair of the Federation of Small Businesses) has explained that in close-knit teams, found particularly within small businesses, flexibility has already largely previously existed by nature and that arrangements could be made (and morale boosted) without the formal ‘right to request’. Now that this process has been made more formal, he feels that businesses need more structured guidance so that they may manage these requests with confidence (without feeling that they are letting staff down if a request cannot practically be met and if expectations have become unrealistic) and so that employees can understand what the ruling means in practice. Similarly, the TUC (who welcome the idea of legislation in general) are disappointed that, without the right to legally challenge an employer’s decision, many workers are powerless and will still lose out as there is nothing in place to ensure consistency on a national (or indeed any) level.

This does raise a significant question as to the purpose of legislating on an issue that individual companies had largely and often successfully dealt with in their own manner, without actually implementing more structured rules. This is surely something that will have to be dealt with in the near future.

The most progressive companies certainly seem to be of the impression that agreeing to requests to work flexibly is an opportunity rather than a bind. Taking into account the investment that will have been made into a valued member of staff, why would an employer think twice about working with that employee to make their life easier – possibly even on just a temporary basis, whilst needed – if it ensures the preservation of a mutually happy relationship which could last throughout a whole career? The website www.workingfamilies.org.uk list a range of other benefits for employers to glean from a flexible workplace which will lead to an increase in productivity and a reduction in costs. These include improved well-being and resilience amongst staff, better alignment of workforce with demand and the probability of more diversity amongst employees. One example of the advantages of flexible working in terms of cost is the practice (already being used by larger employers) of providing only 80% of desk space previously needed for workers, the assumption being that each employee works form home for at least one day per week. Furthermore, in practice these concessions are often now advertised from the outset, in order to attract and recruit excellent staff, rather than being seen as a result of a struggle that is wrangled between employer and employee at a later date.

Thanks to the addition of and the focus on the words ‘all employees’ there is also a growing recognition of the fact that it is an antiquated view that flexible working should only extend to the traditional recipients, for example women returning from maternity leave. Though this, as always, can be extended further and the acceptance that male workers or colleagues without carer responsibilities, for example, should be equally considered is still not quite as commonplace as it could be. It must also be a tough decision for the employer to differentiate between those cases that they grant and do not grant flexibility, as well as the issue of deciding the order by which each case is dealt with. Employers and employees alike, report the existence of friction between those who have been granted flexible working requests and those who, for many possible reasons, have not or those who feel that they have been burdened with extra tasks due to a colleague now working flexibly. It seems inevitable that there will be at least whispered claims of discrimination amongst unsatisfied staff members. However, the practice of having to handle several requests and to allocate decisions fairly has always existed in management so probably doesn’t come as too much of a change.

In conclusion, the right to request flexible working hours is very different from employers having to automatically grant this right. Employers are able to refuse on grounds of burdens of extra costs; detrimental impact on performance; planned structural changes to the business and so on. The introduction of the legislation four years ago essentially made little difference to those employers who had already embraced flexible working arrangements nor to those who are against the practice, as employers still retain the right to turn down requests and face no legal appeal. However, with the fast-evolving changes to employment law – particularly involving issues of diversity and inclusion – this is unlikely to remain the case. Besides this, there is much evidence that flexible working is highly advantageous to staff and employers alike. Affected workers report benefits such as a better quality of life, increased productivity and the feeling that they are more appreciated in their roles whilst employers feel more able to retain and support staff, throughout the changing phases of their working life.