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Working 9 to 5? Considerations for flexible working

According to a YouGov survey, almost half of employees now work flexibly, posing the question as to whether the traditional 9-5 working day is on its way out.

Whilst for most businesses, core hours are led by customer demand and for many that will remain approximately 9-5, flexible working patterns are growing in popularity. This has been encouraged by Government; since June 2014 the right to request to work flexibly has extended to all employees; previously only employees with caring responsibilities had the right.

The process for requesting flexible working

Employees with at least 26 weeks' continuous employment can make a request for flexible working under the statutory scheme. The employer has a three-month period within which to consider the request, discuss it with the employee, and notify the employee of the outcome. The employer must deal with the application in a reasonable manner and can only refuse a request for the specified reasons set out in the legislation.

The employee can complain to a tribunal on specific grounds, but only one request can be made in any 12-month period.

Balancing workers’ needs with customer demands

 However, the right is limited to making a request; that request must then be allowed by the employer for the changes sought to take effect. Therefore, the effectiveness of the legislation depends on employers willingness to be flexible.

Employers will have to balance the demands of its customers with those life places on its employees. However, by allowing a request an employer is more likely to end up with an engaged and committed employee, thereby ensuring better productivity in the long-term.

Making a case for flexible working – considerations for Employers

As well as complying with the statutory procedure, some of the issues for employers to be aware of when considering requests are:

  • Is the request being made for childcare reasons? If so, denying the request could lead to a sex discrimination claim by a female employee.
  • Equally, a man making a request for childcare reasons should be treated the same as a woman would be.
  • If the request is being made to allow an employee to manage a health issue, is the employer under a duty to make reasonable adjustments?
  • Is there a religious aspect to the reasons for the request? If so, an employer could be at risk of a religious discrimination claim.
  • What to do when there are multiple requests made for competing reasons; how do you ensure you treat all employees fairly?
  • Employers should always act in good faith and be wary of the duty not to breach trust and confidence, which could result in a constructive unfair dismissal claim.

The future of flexible working

With increasing awareness and discussion around the shifting trends for flexible working, it’s likely we will see more pressure being applied to Employers to offer flexibility around the traditional 9-5 as workers strive to achieve a better work/life balance.

What will remain vitally important will be the need for clear policies and advice on an area of law can be a mine-field for employers.

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