EDGE (ILM) Magazine, July 2012 – Bellamy Forde discusses flexible working
Should all employees be entitled to the statutory right to request flexible working?
Current legislation states that those caring for children or relatives must have requests to work flexibly considered. Should this apply to all staff?
NO: The statutory rules around requests for flexible working are comprehensive and are there to serve a legitimate aim. The rights exist to protect and assist those who have (or expect to have) parental responsibility for a child under 17 or a disabled child under 18 and those caring for an adult living at the same address. To be eligible, an employee need only have 26 weeks' continuous employment - a relatively simple eligibility requirement which strikes a fair balance between the desires of the financially hard pressed employer and the time poor employee. To expand the categories further would be more red tape when less is needed.
There are a number of different flexible working arrangements ranging from part-time working, flexi-time and working from home. Eligible employees are open to request any of these to suit their needs and make the choice before making their application to their employer. The application is a simple one and although certain information is required to complete the application, there is no need for an employee to prove their caring responsibilities. Applications are accepted by employers in good faith alone.
Of course, an employer is entitled to deny such a request but only if there is a legitimate business aim for such refusal. The decision not to grant an application must be based solely on business grounds and under the statutory procedure, employers should hold a meeting with the employee in question. The employee then has the right to appeal the decision and if the employer has applied incorrect facts to the decision not to grant the application, further redress to the Employment Tribunal.
As can be seen from the above, the current system is based predominantly on the relationship of trust and confidence between employer and employee. The employee makes an uncomplicated application without needing to provide any evidence to support it. If an employer suspects that the employee is abusing the right, it should use its disciplinary procedures.
The current regime works well. Many employers are providing flexibility while meeting the needs of the business and its customers. One of the aims of the original legislation was to bring about a culture change in UK workplaces and the law has helped (and continues to help) to do this. Should the current legislation be amended and the regime be opened up to all employees, irrespective of eligibility or parental/carer responsibility, the system would be open to abuse with the potential for a huge number of constructive dismissal claims based on the refusal to allow a flexible working application.
As it stands, employees who do not have the legal right to request flexible working are free to ask their employer if they can work flexibly. Many employers are willing to consider such requests.
Bellamy Forde, Head of Dispute Resolution and Solicitor at Saunders Law