Flexible working and the law – are you up to speed?

Amba

With the recent announcement that the Government is promising new legislation to boost rights at work, we thought it would be a good idea to keep you up to speed with the current arrangements.

There are plans afoot to make flexible working mandatory in job adverts and the Government is also proposing a review of existing parental leave arrangements.

At the moment, what are employees entitled to?

So what does the law have to say at the moment about flexible working? First of all, you’re not obliged to agree if an employee wants to work flexibly, but they do have a legal right to ask. They can only ask once every 12 months – and this can be a good solution to a long-term need for childcare.

When the need arises at a particular time, such as during school holidays, the employee has to be eligible and use a specific form to make their request. As an employer, you’ll need to respond by a certain deadline and you can only refuse on certain grounds.

Parental leave

If your employees have worked for you for more than a year, they can ask for parental leave. Normally this allows each parent to take up to 18 weeks’ unpaid leave before the child’s 18th birthday.

Parental leave can only be taken in one-week blocks so it could be a popular option during the school holidays, especially if employees have used up their holiday entitlement. The law says that you must grant parental leave unless there’s a sound business reason not to at the time requested.

Time off for dependants

If a sudden, short-term need arises because of childcare issues, an employee is allowed to take a reasonable amount of unpaid leave. It doesn’t matter how long they’ve worked for you, but this can only be for genuine emergencies.

What can you offer informally?

As well as fulfilling your statutory obligations, there’s nothing to stop you from making informal arrangements with employees around their working hours. For example, you could let a parent work around school holiday club hours and make up their time elsewhere or reduce their pay.

The only thing to watch out for is that you treat everyone consistently – and bear in mind that if you let one person do this, you can’t easily refuse another.

Benefits and encouraging uptake

There are undoubtedly benefits to flexible working, such as improved productivity, the commitment of staff and better staff retention.

Offering flexible working options makes good business sense, especially at a time when some organisations are struggling to recruit and retain skilled staff – a problem that may be exacerbated by Brexit.

Employers can encourage flexible working by promoting and publicising it within their businesses and externally. For example (as recommended by the Task Force), jobs could be advertised with the strapline ‘Happy to talk flexible working’, whatever the level or pay grade.

Are there any legal risks?

You should be aware that employees do have some legal redress if you refuse flexible working in some circumstances. For example:

  • If you insist that everyone works full-time, a female employee could claim they have been discriminated against.
  • If you grant a request for flexible working to a female employee but not to a male colleague, he may claim discrimination on grounds of gender.
  • If you deny parental leave or time off to care for a dependent, or if the employee can demonstrate they’ve been disadvantaged for doing so, they could make a complaint.
  • If you dismiss someone for taking parental leave or time off for dependants, that will be treated as unfair dismissal.
  • If you’re not familiar with the law and don’t follow all statutory procedures, an employee might complain to an employment tribunal.
  • If an employee can demonstrate their career prospects have been hampered by taking time off for childcare, this could be discriminatory.

What employers need to do

  1. Make sure you’re familiar with the rights of parents so you know how to handle requests for time off and flexible working.
    2. Treat everyone consistently.
    3. Keep a record of employee requests and how you deal with them.
    4. Check your family-friendly policies regularly so they reflect the law.
    5. Make sure your employees know about them and what they say.

Need further help or advice? Please contact us and our HR experts will be on hand to help.