2014 heralds new laws which will extend the right to request flexible working from carers to all eligible employees.
What are the new laws?
During the course of 2014, new laws will permit any employee with over 26 weeks’ service to make an application to their employer to work flexibly for any reason.
Although the Government has expressed the hope that this new right will encourage more employees to be able to work around their civic responsibilities, an employee can make the request for any reason.
We summarised these new laws in a November 2012 article Flexible working to be extended to all employees
Currently the right to request flexible working (which might, of course, be refused) is limited to carers of children under 18 and those who care for adult dependents. Together with the new universal right, 2014 will see a relaxation of the current stringent timeframes by which the employer must respond to such requests, meet with the employee and make its decision.
Instead of the restrictive rules governing an employer’s management of current flexible working requests, there will now be a requirement only to deal with requests in a “reasonable manner”. We await the Government’s guidance as to what this actually means. The current eight extensive grounds on which an employer may refuse the request remain unchanged.
The main challenge
One of the most difficult areas for employers will be how they manage competing requests from team members.
Realistically, employers will be tempted to make value judgments; for example, if one request is from a working mother and the other from a woman who wants to work flexibly in order to write a novel. The fact that a European directive confers the right to request flexible working to parents returning from parental leave gives some support to the argument that employers do need to give priority to some classes of employees.
But this is not the Government’s intention as they want to avoid a tiered right. They believe any prioritisation would be counter-intuitive as it would simply reinforce the idea that flexible working is primarily for parents and carers. It remains to be seen how Employment Tribunals will approach the problem. We are promised some guidance from the Government and it is to be hoped that this will offer some help to employers in dealing with these requests.
Changing the Business Model
The current law on flexible working is widely seen as a benefit to working parents and carers – it is not about a better way to do business. Is it time we saw flexible working as a benefit to business and we went beyond the wording of the flexible working legislation?
A Working Parents & Carers survey considered the ratio of those requesting formal flexible working for childcare reasons compared to those making the requests as a result of their eldercare responsibilities. The requests from men were as follows: 20% made the request to look after their children but 40% made the request to look after a dependent parent or partner. Eldercare is set to grow in line with demographic changes in the UK. Together with growing demands from Generation Y who make up a large part of the recruitment pool, employers need to put flexible working high up on their agenda if they are to win the battle to recruit and retain talent.
Is now the time to remove the industrial factory clock that dictates so many employees to work daylight hours?
Many companies hire consultants to do a job and trust them to get it done on time and on budget but insist their own staff work fixed hours in a fixed location under the close eye of management. A change to a results-driven and project focussed employee workforce may be a step too far for some organisations but there is a balance to be struck. Flexible/smart working can increase profits whilst at the same time enable employers to engage with a more productive workforce.
The Next Step
Whether organisations choose to focus on their policies and plans in preparation for the changes in 2014 or whether they plan to consider if now is the time to move to a smarter way of working, it is important for employers and employees to start the thought-process in 2013.
The working parents and carers flexible working survey 2011
For further information or to discuss the issues raised, please contact Emma Clark or David Widdowson on +44 20 3051 5711.