What is flexible working?
During the pandemic the term has become associated with not always being in the office, working remotely or from home some of the time. This may be a significant part of it, but flexible working also encompasses, according to employment advice service Acas, reducing your hours (for example to a four day week or part-time), changing your start or finish time, or having flexibility around these, often known as flexitime.
It could also mean compressed hours, working fewer but longer days in the week, or sharing your job with someone else. You might do different hours on specific days or shifts, for example, working only during school term time.
Are you legally entitled to flexible working?
Flexible working is not a legal right at the moment, though there is a legal entitlement to ask for flexible working.
Once the government has lifted the stay at home requirement, there is nothing to stop an employer ordering employees to go back to working full time from the office in a 9 to 5 set-up, as per their employment contract.
“If the employee refuses, this could be considered breach of contract, and result in dismissal,” says Richard Thomas from Capital Law’s employment law team.
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Karen Holden, chief executive of A City Law Firm, says that as long as you have been employed for 26 weeks or more, you can make a “statutory application” for flexible working or compressed hours.
Your employer is not obliged to agree, but they do have to give your request reasonable consideration. “An employer should hold a meeting to discuss the request and weigh up the pros and cons, otherwise, an employee can appeal the decision and if applicable may issue a grievance.”
Beware the ‘fake’ flexible working
Already, campaigners such as Anna Whitehouse, who is fighting for more family-friendly working practices with her Flex Appeal, are warning of “fake flex”, or “flex wash”.
That is employers advertising the fact that staff can work wherever they like for a couple of days a week, but not actually introducing any measures that create more accommodating hours or ways of doing the job.
Recent figures from the Office of National Statistics show that people working from home during lockdown actually spent more hours at work, were less likely to be promoted and less likely to take time off sick.
Employers must avoid measures that give the illusion of flexible working, while still requiring staff to consistently put in long hours and be responsive at irregular times, concludes a new report by the Global Institute for Women’s Leadership at King’s College London, and employee research agency Karian and Box.
They surveyed 254 organisations and found that 90 per cent had increased support for home-working since the start of the pandemic, and 97 per cent are planning to adopt a hybrid-working model in some form. But more targeted flexible working measures were much less common.
Only 36 per cent of employers were actively redesigning job roles for home or hybrid working, only half had provided more support for part-time working, and 63 per cent had increased support for parents and carers.
Genuinely flexible work is not just about where you lay your laptop, but less rigidity around how and when you work, too. And as the pandemic has emphasised the challenge of juggling childcare or looking after those who are ill while working full-time, more employees are seeking some wriggle room.
Can parents expect flexible working?
If your employer denies you flexible working you can request unpaid parental leave. You are entitled to take a total of 18 weeks for each child up until they are 18, with no more than four weeks in any given year.
But you must have been employed for at least 12 months, and give 21 days notice. “Employees should check their staff handbooks for more details and processes as the employer may have offered more than the statutory rights afforded,” says Holden.
How do you ask for flexible working?
You need to apply for flexible working in writing, and state whether you’ve made an application before. You’re only allowed to apply once a year. In the letter, lay out the change you want, when you’d like the change to start, how you think that change will affect your work or the business and, points out Acas, make sure you specify if your request is related to anything covered by the Equality Act 2010. For example, you are disabled and flexible working is part of an employer making a reasonable adjustment for that.
Like negotiating a pay rise, your request is likely to be better received if you lay out why flexible working would be a good thing for your business, your colleagues, or your productivity.
The charity Working Families has a template letter you can use.
What happens after you make your flexible working request?
A meeting should be set up to discuss your request, and you should be given a decision within three months of asking for it.
There are eight grounds on which an employer can refuse a flexible working request, which include things like it being too costly, that they can’t re-organise work among existing staff, or that there’s not enough to do during the hours you propose to work.
“Although the regulations do allow an employee to apply for flexible working, there is no automatic right and the grounds for refusal are wide” says Thomas.
“Most businesses would be able to reasonably refuse a request under one of the grounds that suit their business.”
But, if your company has operated successfully during the pandemic, with everyone working at home, or with parents shifting their hours around to home-school children, it might be harder to argue that your post-pandemic request is detrimental.
And if your request is related to tasks such as childcare, Thomas says “An employer who does decline such a request may also be at risk of a claim for sex discrimination.”
Will the law change?
The government has said there will be a public consultation on flexible working later this year, looking into how to extend it after the pandemic. Some within government want to introduce a legal right to work from home once full lockdown has ended.
There are many groups pushing for change, including Whitehouse’s Flex Appeal, which last week presented a proposal to the Law Commission, and is calling on the government to drive flexible working through 2022’s employment bill, making it an automatic right from day one for all employees.
The Chartered Institute of Personnel and Development (CIPD) has a new campaign called “FlexFrom1st” asking for the legal right to request flexible working from day one of employment, though like current legislation, this wouldn’t mean you’d be automatically entitled to it, just that you can ask for it as soon as you begin a new job.
There’s an economic case for more flexible working. Research from the government-backed Behavioural Insights Team and the jobs site Indeed, showed that offering flexible working more explicitly in job ads would increase applications by up to 30 per cent, and create at least 174,000 new roles each year.
The right to disconnect
Too many of those working from home are having to put in shifts far exceeding their agreed hours, believes the union, Prospect, which represents professions including engineers, scientists, managers and civil servants.
It warns that mental health has deteriorated during lockdown as a result of an inability to switch off from work, with a third of remote workers doing more unpaid hours than they were before the pandemic.
Prospect is calling for the introduction of a new legal “right to disconnect” in the UK, and says it is backed by more than 70 per cent of workers in Scotland, and 59 per cent in the UK as a whole.
This law, which this month was introduced in Ireland in response to the rise in remote working, would mean companies need to agree with staff when they can and when they cannot be contacted for work purposes.
Richard Hardy, Prospect’s Scottish national secretary, says “People’s experience of working from home during the pandemic has varied wildly depending on their jobs, their home circumstances, and crucially the behaviour of their employers.
“It is clear that for many of us, working from home has felt more like sleeping in the office, with remote technology meaning it is harder to fully switch off, contributing to poor mental health.
“Including a Right to Disconnect in the UK Employment Bill would be a big step in redrawing the blurred boundary between home and work and would show that the government is serious about tackling the dark side of remote working.”
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