Partner Article

Flexible Working - The Future?

With Watson Burton LLP Law Firm

Flexible working is a phrase which employees and employers alike are becoming increasingly accustomed to hearing. It seems that the strict nine to five day is rapidly disappearing, as a move towards a more fluid system, which takes account of personal circumstances, takes over.

The right to request flexible working was brought in under the Employment Act 2002, which amended the Employment Rights Act 1996. Supporting regulations set out the detail of the procedure.

Although flexible working does not have a formal definition, generally it is understood to mean any working arrangement which does not accord with the standard arrangements which an employer has in place.

When asking for flexible working, there are a number of things an employee may be seeking, including a variation in hours or days of work, working from home and job sharing. It is important to note, however, that the current legislation does not provide a right to work flexibly. It merely provides a right to request to work flexibly, which an employer does not have to accept.

There are certain requirements which need to be fulfilled to be able to make such a request. These include being an employee who has 26 weeks’ continuous employment, although some employers have chosen to implement the right to request more widely throughout their organisations. Currently, an employee who fulfils the requirements can ask for flexible working in order to care for a child under six years old, a disabled child under 18 years old and a person who is over 18 years old who requires care.

However, in November 2007 the Government indicated that it intends to broaden these categories so that flexible working can be requested where an employee has a child over the age of six. As a result, Imelda Walsh, Director of HR for Sainsbury’s, was asked to undertake a review of the right to request flexible working in order to determine the new ‘cut-off’ age. The outcome of this review, published on 15 May 2008, is that Ms Walsh has recommended that the right to request flexible working is extended to those with parental responsibility for children up to the age of 16. Ms Walsh also proposed that this extension of the request right should be implemented in one go, rather than by phased implementation. The government has accepted these recommendations and will now consult on how best to implement them.

The impact upon employers may depend largely on the size of the organisation and its ability to adapt and absorb staffing changes. Smaller businesses, in particular, may struggle to smooth over any fluctuations in the number and/or availability of their employees far more than larger organisations.

In terms of effects for employees, more fluid working arrangements may provide the flexibility to successfully manage a career in conjunction with raising a family and/or caring for a disabled relative. This may have positive consequences for employers, who may find that increased flexibility results in a more productive and efficient workforce.

It remains to be seen what the real the impact of these changes will be. Although these recommendations are certainly a shift from the current position, it must be remembered that, for the time being at least, the right to flexible working remains one to request to work flexibly and is not automatic.

If you have any queries relating to this article, or any other Employment matter, please contact Sarah Baratt at Watson Burton LLP on 0191 244 4332 or email sarah.barratt@watsonburton.com.

This was posted in Bdaily's Members' News section by Ruth Mitchell .