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25 February 2014
In the run-up to April 2003, the Government caused considerable concern and alarm among some areas of the business community by introducing a statutory right for certain employees to request flexible working. When this right was brought to life by the Employment Act 2002, many employers across the UK took a deep breath, anticipating administrative red tape, increased employment costs and stress-induced headaches for line managers and HR teams.
Intrigued to discover the impact of such seemingly unwelcome legislation six months on, Lovells teamed up with the Chartered Institute of Personnel and Development (CIPD) to assess the impact of the legislation.
What is the right?
The right to request flexible working forms part of the broader Work-Life Balance Campaign. The campaign focuses on ways to retain the skills of working parents within the business environment by assisting them to continue their careers. Other initiatives include enhanced maternity rights and the introduction of adoption, paternity and parental leave rights.
The right to request flexible working extends to parents of children under six or disabled children under 18 who have been with their employer for six months or more. Despite more ambitious initial plans, the right does not presently extend beyond this specific group of employees, although this will be reviewed and some argue that the right should eventually be extended to the whole employee population.
Requests for a flexible working pattern may take a variety of forms, including a change in the hours, time or place of work.
One important feature of the legislation is that employees do not have the automatic right to flexible working arrangements. The emphasis of the legislation is on facilitating discussion between the employer and employee about flexible working patterns to suit both sides. The legislation sets out a formal request procedure and, although employers are required to consider any requests seriously, they are very much in the driving seat. Having considered each case on its own merits and against the needs of their particular business, employers have
a right to refuse a request on certain business-related grounds.
This approach is reflected in the potential sanction for employers should they refuse a request. Unless the employee can show that a decision to refuse a flexible working request was based on incorrect facts, employees cannot require the employer to revisit the substantive decision. They can only claim that the employer failed to follow the correct procedure in reaching its decision. The maximum compensation of eight weeks’ pay is subject to a cap of £2,080.
The survey results
The survey conducted by Lovells and the CIPD examines the right to request flexible working through the eyes of those who have been at the front line of implementing the new right – namely, HR professionals. Surveys were completed by a range of organisations across all industry sectors, from those with fewer than 25 employees to those with more than 25,000.
Despite the initial concerns, the results of the survey indicate that the flexible working regulations have proved to be user-friendly for organisations in both the private and public sectors: 76 per cent of employers say that the impact of the legislation has been negligible and an astonishing 90 per cent report no significant problems complying with the new regulations. This is despite the fact that more than a quarter (28 per cent) of employers have seen an increase in the total numbers of requests for flexible working since the right was introduced in April 2003.
The sceptics might argue that the reason for such positive feedback is that employers are taking advantage of the soft law approach simply to refuse any request for flexible working. This is not borne out by the statistics, with nearly two-thirds (62 per cent) of those who received statutory requests confirming that they approved at least half of the requests received, either in the form submitted or in a modified form.
Interestingly, it is not just clerical workers (whose positions might traditionally be seen as flexible-friendly) who are exercising their right to ask for flexible working. Managers (21 per cent), technical staff (20 per cent) and professionals (27 per cent) are also taking up their rights to make a flexible working request, even though traditionally it might be considered career limiting to do so.
As might be expected, however, it seems to be less common for men to make requests for flexible working. More than half (55 per cent) of the respondents to the survey who had received statutory requests had not received a request from a man, and 29 per cent said that such requests made up less than a quarter of all statutory requests.
Employers reported receiving a wide variety of requests, from term-time working to home working. However, the most common request is for part-time work or adjustments to hours at either end of the day. Where requests are refused, the most likely reason given by employers is the inability of the business to reorganise existing staff. Detrimental impact on customer demand and impact on performance come a close second and third. Interestingly, cost, which was one of the main concerns voiced by employers before the legislation came into force, is rarely cited as a major issue (save for very small organisations).
Although it appears to be too early to say whether or not flexible working has led to tangible business benefits in terms of increased productivity, staff retention or lower absence rates, the survey indicates that the majority of employers (68 per cent) believe that the opportunity to work flexibly has had a positive effect on employee attitudes and morale. This is something that some employers feel they have to manage carefully, however, with reports of increased employee expectations and difficulties with persuading employees to focus on the needs of the organisation as well as their own. Despite this, 72 per cent say that they are prepared to accept requests from all staff, and not just those with the statutory right.
So why the enthusiasm for the new legislation? It seems that, for many employers, the concept of flexible working is not a new one.
Prior to the implementation of the statutory right, many employers considered and approved flexible working requests, albeit on an informal basis. The legislation encourages rather than enforces this culture. The soft law approach seeks to develop a work-life balance through a formalised discussion process and gives those businesses for which flexible working is not a workable option the ability to turn down such requests.
Employers appreciate the fact that the Government has not ridden roughshod over business needs by imposing an automatic right to flexible working.
And finally, on a subject close to many an employer’s heart, there has been no rash of claims following the implementation of the legislation; in fact, only 1 per cent of those who turned down requests reported that litigation had been brought against them. n
Antonia Holmes is a senior associate in Lovells’ employment group