3 Oct 2016

 As of 6 April this year, the right to request to work flexibly was extended from carers of dependents and parents with children under 6 years to include parents with children under 17 years (or under 18 years if the child is disabled). This significantly increases the potential number of employees with the right to make such a request. Following the extension of this right, we conducted a survey of HR professionals, managers and employers in order to explore what effect the flexible working legislation has had on business to date and to see what employers envisage that the outcome of the extended right to request will be. Our results show a very positive attitude by employers towards flexible working, with employers embracing the idea and even being open to the notion that the right to make a request should be extended to everyone.

The expected effect of the expanded entitlement?
Predictably, the overwhelming majority of respondents (59%) anticipate receiving more requests now that the entitlement has been increased to parents with children under 17 years. Many employers will surely feel that the need for a parent of a non-disabled 16 year old to work flexibly is not comparable with an employee who is the parent of two year old. However, the law does not allow employers to take such factors into account when refusing a request – it will be interesting to see if there is a trend for refusal of flexible working requests in relation to employees with older children and whether this gives rise to disputes in the future.
How effective is the procedure?
The majority of respondents – 64% think that the statutory procedure is an effective way of dealing with such requests.  This is somewhat surprising as the complexity of the procedure, which is highly prescriptive, has been criticised by many employment law commentators and the survey does show that there continues to be dissatisfaction with the statutory procedure which is described as “burdensome” and “cumbersome”. This tallies with what clients often tell us about there frustration in some cases of not feeling comfortable with dealing with these issues informally (particularly for more senior employees) for fear of exposing themselves to liability if those discussions do not go the employee’s way. Perhaps these results indicate that many employers and employees have become familiarised and comfortable with the procedure since its introduction in April 2003
Is the entitlement understood?
Our survey indicates that both employers and employees are, perhaps surprisingly, receptive to the flexible working regime – 66% of respondents thought that the right should be extended to all employees and 36% of employers who have received an application for flexible working have never refused such an application.
This is even more interesting when compared with the typical reaction of employees when requests are refused: only 45% accept the decision, 16% become difficult, 9% leave and 5% become litigious. An allegation of sex discrimination has followed the refusal of a request to work flexibly in the experience of 11% of our respondents. 
It paints a picture of employers being open and flexible about accommodating requests, whereas employee whose applications are refused have a tendency to react negatively. 
The positive reaction to requests to work flexibly can be explained by the positive experience of flexible working arrangements in the workplaces of the majority of respondents. Several of our respondents have revealed that the practice at their workplace is to consider requests from anyone – not just those to whom the statutory right applies and others have even shared that flexible working has actually improved productivity. However, and employers continue to fear that if the request comes from a female employee, that it could give rise to a claim for sex discrimination.
So what can we learn from our survey results? Well, employers and employees are very clued up about flexible working – 55% of you think that employees have a good understanding of the right to make a request. It seems as though many of you have positive experiences when the employer’s approach is open and positive and the flexible working arrangements are well managed – making clear that working flexibly does not necessarily mean less work for the same salary!
…And finally a “top tip” when accepting a request to work flexibly
It is advisable that when a request to work flexibly is accepted, that the employer allows for a probationary period to see how the arrangement is working. A simple acceptance of a request is a change to the terms of the employment contract – even if it is not expressed as such. The employer needs “flexibility” to be able to unwind or alter the arrangement if things are not working out without needing to consider the sticky issue of changing terms and conditions of employment.
Romella Manning-Brown is an Associate in the employment department and can be contacted for more information on this article at RManning-Brown@foxwilliams.com

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