· 3 min read · Features

The modern workplace: A more flexible world?


A recent TV documentary on work/life balance featured an occupational psychologist urging people to do three things to ensure they were not overworking: go home at 6 pm once-a-week, turn off your BlackBerry at the weekend, go to lunch with a colleague.

It struck me as good indicator of where we currently find ourselves; with technology making us more mobile, so we work harder and play less.

This is a point not lost on the Government, which launched a consultation in May 2011 that covered extending the right to request flexible working for all: Consultation on Modern Workplaces.

The purpose is to enable employees to 'better balance their work, family and personal lives'.

Only employees who care for children under 17 or dependent adults have the right to request a flexible working pattern, provided they have at least 26 weeks' service when they make their request.

A flexible working pattern could mean any 'non-standard' working pattern. The most prevalent form of flexible working is part-time working, with 69% of employees telling a DTI survey that it would be available to them if required.

There is no positive legal right to a flexible working pattern, but employers need to be wary of sex discrimination claims.

If an employer has a practice of refusing applications for flexible working, doing so may place women at a disadvantage which cannot be objectively justified (London Underground Ltd v Edwards (No 2) [1998] IRLR 364). Likewise, if a man's request for flexible working is not treated equally to that of a woman's, the man may bring a claim of direct sex discrimination too (Walkingshaw v John Martin Group ETS/401126/00).

An employer can refuse a request for flexible working for eight statutory reasons. Broadly, they cover the principal operational difficulties that an employer might have in accommodating flexible working. According to BERR, 80-90% of flexible working requests are accepted by employers.

The Flexible Working (Procedural Requirements) Regulations 2002 set down an exact procedure that employers must follow when considering such requests. Failure to follow it is a ground of complaint to the Employment Tribunal, under which an employee can claim up to eight weeks' capped pay.

The proposals

The Government proposes to do away with the current flexible working scheme, apparently from a desire to achieve greater gender balance in flexible working arrangements and to sever the tie between flexible working and caring responsibilities. The consultation notes that in 'today's society, both men and women want to find a balance between work, family and caring responsibilities'.

So the Government proposes:

scrapping the right of parents and carers to request a flexible working pattern, substituting it with a new right for all employees to do so (importantly, the right will continue to be the right to request only).

keeping the eight statutory business reasons why an employer can refuse employee requests (the grounds of refusal will remain unchanged)

abolishing the statutory procedure for making and considering requests which currently must be followed - the statutory procedure would be replaced by a duty on employers to consider requests 'reasonably'

introducing a code of practice providing guidance on the approach employers should take to ensure requests are considered reasonably. Consultation on any code would consider whether it should be 'principles based', or whether it should provide a 'safe harbour' - in other words, whether compliance with the code would give an employer immunity in a claim over procedural failings

maintaining eligibility threshold at 26 weeks' service

What does this mean? Currently, there is no draft legislation, and the consultation on the Government proposals has only recently closed. However, it seems likely that some legislative proposals will take shape, particularly as the flexible working overhaul is connected to the Department of Transport's Alternatives to Travel agenda, which is in part looking to reduce the burden of commuting on our transport infrastructure.

The proposals could have the effect of limiting some sex discrimination claims, especially when taken in conjunction with the new right to additional paternity leave, but it is likely that employees will still be able to challenge decisions on flexible working in the Employment Tribunal.

HR departments should seek to start discussions with their business counterparts to consider their operational demands, the technologies available to support flexible working arrangements, and whether existing working practices are likely to sit well with the proposed change.

Ultimately, the new proposals aim to 'enable' a substantial change in workplace culture. The challenge, therefore, remains for businesses to create a balance between operational demands and an atmosphere in which employees feel able to achieve a sensible work/life balance.

Sherilee Weirich is an employment specialist at Shoosmiths