The rise of flexible working

With flexible working requests set to increase, including from men, how should employers respond? Jane Wheeler, partner at Hine Legal, looks at employers' legal responsibilities and offers good-practice tips.

Key points

Flexible working arrangements are the top employee benefit with almost half (49%) of workers saying flexibility and work-life balance will be the most important benefits to them in the future, according to a survey by employee benefits group Grass Roots released in September. The survey of 1,000 employees and 200 HR managers showed employees want to work wherever and whenever they want, or to have flexibility within a fixed working period.

Meanwhile, the Institute of Fiscal Studies estimates the gender pay gap for women at around 18%, in hourly wages, following time out to have children; this gap widens over the following 12-year period, as promotion opportunities reduce.

The Fawcett Society attributes this in part to employers not producing enough quality part-time jobs, assuming that's what women want. However, many women simply wish to do their same roles on their return but on a more flexible basis.

Gov.uk defines flexible working as a way of working that meets the employee's needs. This promotes the idea that flexible working is something to suit the employee and doesn't address the fact that it must work for the business too.

The law and flexible working requests

So how can businesses embrace flexible working so that it works positively for both parties? How can employers approach flexible working requests more constructively to enable employees to do their existing roles flexibly?

Recent press coverage focuses on the pay gap between men and women, concentrating on time out taken by women: but is the landscape shifting with more men taking time out for child-caring responsibilities?

Flexible working is not just reduced/part-time hours, but includes full-time working on a more flexible basis, eg different start and finish times, compressed hours or working from home.

After 26 weeks' employment with the same employer any employee can make a flexible working request. There is no right to flexible working: there is just a right to be considered for it.

Requests must be dealt with reasonably: consider the advantages and disadvantages of granting the request; meet the employee to discuss; and reach a decision within three months of the request being submitted. A request can be turned down on a number of permitted business grounds, for example extra costs or likely detrimental impact on quality and performance.

Does the flexible working regime lack teeth? The employment tribunal simply reviews the process and whether the employer has taken the request seriously. The award for a failure to deal with a flexible working request properly is eight weeks' pay (capped currently at £479 per week).

Insisting that an employee works full time can also give rise to an indirect sex discrimination claim if the employer's decision: (i) would be the same regardless of the employee's gender, and (ii) has a worse impact on the employee's gender and the employee is personally disadvantaged by the decision, unless the employer can objectively justify its decision.

These claims can be costly, including uncapped damages plus awards for injury to feelings.

However, increased flexible working requests by men and a shift allowing men to take more periods of leave could challenge the assumption that indirect sex discrimination predominantly affects women.

Practical tips for responding to flexible working requests

When considering requests for flexible working, take the following into account:

• Avoid automatically saying "no" without considering the impact on the business.
• Demonstrate business buy-in: ask the employee to complete a form outlining how the proposed request could be accommodated.
• Do your research. For example, don't decline requests for job-sharing on the basis that it is not possible to find a recruit, without checking first with recruiters.
• Some employers balance the merits and impact of refusing a request and prioritise requests as a result, for example a request to adjust start and leave times to accommodate a disability may be a reasonable request.
• Flexible working requests are permanent changes to employment contracts, but the business can suggest a trial period.
• Probing too much into childcare arrangements is a delicate issue. However, for the business to evaluate whether, for example, working from home is going to work, it is perfectly proper for a business to ask about childcare arrangements, otherwise it's unlikely an employee would be able to do a productive day of work.
• There is often an assumption that certain roles simply cannot be done part time, and would not adequately fulfil client obligations. An employer might want reassurance that if the employee is not visible, they are actually working. This is an example of where a trial period is valuable.
• If, after careful consideration, the request is denied, a reasoned explanation should be given. It's harder for the employee to challenge a decision if some flexibility is shown (eg the employee asks for three days and this is declined, but four days are offered instead). The flexible working process simply requires that the request is rejected on certain permitted business grounds. A business can only defend an indirect discrimination claim if it has put forward sound business reasons for declining the request.

Avoiding discrimination claims from men

There have been some indirect sex discrimination claims brought by men in relation to flexible working requests. Claims can successfully be brought by men if they can show that a similar request brought by a woman would have been taken more seriously.

If a business turns down flexible requests routinely, whether the claims are made by men or women, this will of course make it harder for an employee to bring a discrimination claim.

However, employers should take into account the good practice points above.

It remains the case that more women than men take on childcare responsibilities. Shared parental leave (splitting the period of leave so that it can be taken by women and men) is in place, but only 3,000 fathers (4% of the total number eligible) took up shared parental leave in the first three months that it was available.

Nevertheless, it is becoming more challenging for women to bring indirect sex discrimination claims and employees of both sexes will need to produce more probing evidence of being disadvantaged by a request being turned down.

Jane Wheeler is partner at Hine Legal, specialist employment law solicitors.