Briefing in advance of the consultation on flexible working

Briefing in advance of the consultation on flexible working from members of the Working Parents Group

 

SUMMARY

The Working Parents Group is a coalition of voluntary organisations and trade unions who campaign together to improve parents’ employment rights.  We welcome the planned extension of the right to request flexible working, but are concerned that the right to request may be weakened by a proposal in the forthcoming consultation to remove the procedure from statute.   

 

There are many positive ways in which workplace cultures may be improved and more informal approaches to flexible working encouraged. Many employers already go beyond the statutory requirements and offer the right to request flexible working to all their employees, because they recognise this as an effective means of attracting and retaining the best staff and promoting high morale and performance.  However, the statutory right provides the basic minimum protection for vulnerable employees who wish to work flexibly or whose employers do not understand the business benefits of flexible working.   At its simplest, the right to request demands that a procedure be followed to consider whether an alternative pattern of work can be accommodated.  It is not a right to have flexible working.

 

This briefing raises a number of concerns in advance of the consultation, which is due early in 2011 and makes some suggestions for positive change.

 

BACKGROUND

 

Flexible working – the coalition agreement

The Government has promised that the consultation will be about how, rather than whether, to extend the right to request flexible working to all employees.  We warmly welcome this decision.  There is evidence to suggest that parents and carers will benefit from this change:   flexible working is seen as an appropriate method of working and more culturally acceptable when it is available to all employees, regardless of their personal circumstances[1]. 

 

The change will also help families where working age grandparents are providing childcare. One in three working mothers depends on grandparents for childcare[2] and half of all grandparents are under the age of 65[3].  With the increase in the state pension age and cuts to childcare tax credits, increasing numbers of younger grandparents may face pressure to juggle work and childcare and, in some cases, providing care for an elderly or disabled relative as well.

The current law

 

There are five key elements to the current statutory right to request:
a)         a right for certain employees who have completed 26 weeks of service to request a variation in their hours or place of work
b)         a duty on employers to consider requests received and to accept them or turn them down only for one of eight permitted statutory reasons

c)         a statutory procedure to be followed which includes a timetable for a meeting between employer and employee (with a right for the employee to be accompanied) followed by an internal appeal of the decision

d)         a right for an employee to appeal to an Employment Tribunal if the employer has failed to follow the statutory procedure or has used incorrect facts

e)         a protection from dismissal or detrimental treatment for employees exercising these rights.

CONCERNS

1) A Code of Practice?
There is a suggestion that the current statutory right to request will be extended to all employees but that the procedure that employers must follow will be removed from primary legislation and placed in a Code of Practice.   It is difficult to see what the new right would mean: the right to request is itself largely a procedural right and its strength is in requiring employers to follow a formal procedure when responding to a request, rather than simply to reject it outright. 

 

Without any statutory procedures, employers may no longer be required to meet with employees to discuss a request within particular timescales.  What will be the sanctions on employers for failing to follow a Code of Practice?  Without the statutory procedures, on what basis will an employee be able to appeal to an Employment Tribunal? 

 

The current statutory duties are not onerous for employers, nor do they give rise to many Employment Tribunal cases.   The simplicity of the legislation and the attempt to provide balance between employee and employer needs has contributed to its success and to calls for its extension.  The 2007 Work Life Balance Employer Survey found that 91 per cent of workplaces who received requests to work flexibly in the previous year approved all requests. 

 

Some employees do need to use the full extent of the law to enforce their right to request.  However, flexible working claims have accounted for less than 0.1 per cent of all Employment Tribunal Claims since the right was introduced in 2003.  The total number of claims in the year to March 2010 (taking account of the extension of the right to parents of children up to 17) was 350[4].

 

 

 

There may be benefits in a Code of Practice for employers to be developed alongside the statutory rights.  It could help employers maximise the potential of flexible working, and offer guidance.  For example, many employers do not understand the relationship between flexible working and potential discrimination issues:  getting the procedure right is not always sufficient and a Code could draw attention to the need to consider potential sex, religious or disability discrimination issues if a change to working pattern is refused. 

 

For example, it has been successfully argued that, because women tend to have more childcare responsibilities than men, insisting that women work long or inflexible hours can be indirect sex discrimination.  In sex discrimination cases, Employment Tribunals will inquire into much more than the statutory business reasons for refusing a request:  employers will need to demonstrate that their actions are a proportionate means of achieving a legitimate aim.  Employers should have examined thoroughly whether a change is feasible, considered alternatives and not relied on generalisations for rejecting a proposal to avoid a discrimination claim.

 

2) The 26 week rule

While the right to request flexible working has allowed many parents and carers to change their working patterns to fit around their families, it is not available to those seeking work.  An employee must work for 26 weeks before they may exercise their right to request.  Many parents and carers, including parents of disabled children, find it impossible to combine full time work with their caring responsibilities, yet can find few jobs advertised for family-friendly hours.

 

A recent survey by Gingerbread found that 62 per cent of lone parents had seen no or very few jobs advertised at part time hours that they could apply for while 97 per cent had seen no or very few jobs advertised within school hours[5].  Many parents cannot enter work on a full time basis, even for six months, on the expectation that they may scale down later.  As a result, parents’ talents are wasted and employers are not recruiting from the widest possible pool.

 

One solution to this would be to remove the 26-week requirement in current legislation.   Many employers already agree to discuss working hours with their employees at any time.  Indeed 92 per cent of employers (covering 96 per cent of employees) told BIS that they would consider a request from anyone, regardless of whether they had a right to request flexible working[6].  Employers will still be able to turn down requests for one of the permitted reasons (which include an inability to recruit additional staff).  Much more also needs to be done to improve job design and advertising so that parents and others can enter jobs with the required flexibility from the outset.

 

 

 

3) Deciding between workers and a hierarchy of needs?

There are concerns that employers will be faced with difficult decisions if the right to request is extended to all employees:  how will they decide which employee’s needs should be paramount?  The CBI, while supporting plans to extend the right to request under the current framework has suggested that the “government must provide clear guidance on how to prioritise requests from employees, since there will inevitably be occasions when not every request for flexibility can be met and some employees will have to be given priority over others”[7].

 

We do not agree that some employees should be given priority in the right to request legislation. Difficult occasions are already inevitable:  if two parents are working flexibly and the business cannot accommodate a request from a third parent, then they may legitimately turn down that request.  There is no evidence to suggest that organisations have difficulty in offering the right to request to all their employees:  many good employers already do so.  Indeed greater cultural resistance to flexible working has been found in organisations where the actual take up of flexible working is dominated by certain types of employees such as parents of young children.  Ninety per cent of employees agreed that “employers should give all employees the same priority when considering requests to work flexibly”[8].

 

However, certain groups of employees do have additional protection from other legislation, notably the Equality Act.  In some circumstances turning down a request for flexible working from a disabled person may be a failure to make reasonable adjustments, or failure to allow a woman’s request to work flexibly may be indirect sex discrimination.   The Equality Act is the right place for the needs of certain groups of employees to be protected, not within flexible working procedures. 

 

SOME POSITIVE SUGGESTIONS

 

1)  Amending the permanent change to contract

Once an employee has exercised their right to request and a change agreed, that change becomes a permanent change to the employee’s contract and they are not able to exercise their statutory right again for 12 months.  Some employees make a request because of very particular circumstances, for example they may be caring for a terminally ill relative and need flexibility for a short, but indefinite, period of time.  They may wish to return to full time hours in a matter of months or even weeks.    Good employers may easily accommodate this and offer informal flexible working, or agree to another request within 12 months.  We suggest that the 12 month rule is unnecessary and that good employment practice would build in regular reviews of whether flexible working is appropriate from both the employer and employee perspective.

 

2) What do we mean by flexibility and requesting more hours of work
The consultation provides a timely opportunity to publicise what the right to request is about.  Too often flexible working is equated with part time hours and lower skilled work and associated with a lack of commitment.  Flexible working need be neither reduced hours, nor reduced commitment: indeed evidence on performance and employee engagement suggests that flexible workers are both loyal and productive.  There is also evidence that jobs at the most senior levels can be worked on a flexible basis.

 

There is nothing in the current legislation to prevent the right to request from being used to ask for more, rather than fewer, hours of work, but it is not often used this way.  Proposed changes to Working Tax Credit (WTC) mean that couple parents will have to work 24 hours a week between them, with one working at least 16 hours a week to be eligible for WTC, so many parents may wish to use their right to ask for more hours.   

 

The legislation allows an employee to ask to work from home or from another of his or her employer’s places of work:  it did not anticipate the growth of technology that allows mobile working.    It no longer seems appropriate to confine employees’ places of work to home or an office and the new legislation could reflect this.

 

3) Non-legislative measures to encourage flexible working
We hope that the consultation will include suggestions for non-legislative means of improving working cultures.  Accessing flexible work would be much improved if more jobs were advertised on a part time or flexible basis.  A requirement that government jobs, or indeed all public sector jobs, be advertised flexibly would open up the jobs market to many parents and carers who are currently forced to choose between low paid part time work or unemployment.  The Government should be an exemplar employer in flexible working.  We would also welcome an employer kite mark or strap line on advertisements that said the employer welcomed a discussion about hours of work at the interview stage or before, and which demonstrated the employer’s commitment to looking at job design before advertising.

 

Finally in our experience the role of union equality representatives has also been particularly important in supporting implementation of flexible working, both in terms of supporting individual workers to identify their needs appropriately, and in raising awareness with the employer and other workers on the issue in general. As union equality representatives do not currently have sufficient rights we strongly recommend that their role be included as part of the extension to the flexible working regulations.

 

This briefing was prepared by Working Families with the support of the following members of the Working Parents Group:

Citizens Advice, Fawcett Society, Gingerbread, Grandparents Plus, The Mothers Union, NCT, Parentline Plus (Family Lives), Single Parents Action Network (SPAN), TUC, UCU, UNISON and Unite.

 

January 2011 Further information from Elizabeth.gardiner@workingfamilies.org.uk