Quantcast
Channel: Career Sparkle » flexible working
Viewing all articles
Browse latest Browse all 6

Green shoots of recovery – fresh look at flexible working rights

0
0

According to The Work Foundation, the world of work is changing: “Both the structure of the labour market and the types of work we do. Employees are the 21st century organisation’s greatest asset – accountants are even adding human capital to the balance sheet.”

But has the concept of work-life balance been pushed to the background in the wake of recession? When the economy collapsed, many employees were happy just to have a job and complaints that they were not able to fit their private lives around their work schedules were not prioritised. However, with the Government’s introduction of the ‘happiness agenda,’ are we seeing a reversal shift?

Nigel Mackay, associate at legal firm Squire Sanders (formerly Hammonds), believes that now’s the time for employers to look afresh at employment law on rights to request flexible working, additional paternity leave and time off for study.

Nigel Mackay, associate – labour & employment,
Squire Sanders:

Until the UK was hit by the worst recession for years, the elusive work-life balance was very much on the agenda for most employees. When the crisis hit, for both employees and employers, work-life balance became very much a question of being at work while still alive.

Now the elusive green shoots of recovery have allegedly started to appear (though slightly frost-bitten) the Government has decided that ‘happiness’ is again just as important as hard work. David Cameron believes that: “It’s time we admitted that there’s more to life than money and it’s time we focused not just on GDP but on GWB – general wellbeing.”

Additional paternity leave

The introduction of additional paternity leave has been much heralded and will come into effect for babies due on or after 3 April 2011. Under the scheme, fathers can take up to 26 weeks’ additional paternity leave if the mother returns to work before the end of her maternity leave period. It’s unclear as yet how popular this will be.

The ­Government estimates that take-up in 2011-12 will be only 4-8% of eligible fathers, and while its evidence shows concern about the lost income as the main reason for this, it may also be that given the choice of staying late in the office or being at home with a new baby, many men will shelve their work-life balance concerns with some alacrity.

Flexible working opportunities

Although the right to request flexible working has existed for many years, the Government has indicated that it wants to extend that right in order to drive its work-life balance agenda. In the short term, the right is being extended so that from April 2011 employees will have the right to request to work flexibly if they have parental responsibility for a child aged under 18 (previously under 17 only, so little material change there).

More significantly, however, a consultation is also underway as to whether the right should be extended to all employees, regardless of whether they have children or other dependants. Seminar audiences we have addressed show a strong wish among HR practitioners to take up such an arrangement coupled with an equally strong concern as to how to prevent the disruption to the business caused by others doing so. However, bearing in mind that any drop in hours and concomitant cut in pay is likely to be permanent, it is possible to anticipate a much smaller take-up for this than seems probable at first sight.

For now, employers must remember that there are two main issues to consider when dealing with a flexible working application:

1. Set proper boundaries

First, the statutory procedure is highly prescriptive, meaning that when a request to work flexibly is received, the priority for an employer must be to ensure that all time limits will be met, a triumph of form over substance.

2. Avoid indirect sex discrimination claims

The more important issue is that if a female employee’s request for flexible working is refused, then there is a risk of an indirect sex discrimination claim (and such a claim is more likely where there has been a failure to follow the statutory procedure). The Employment Appeals Tribunal (EAT) confirmed again last year that where a refusal to permit flexible working puts women, including the claimant, at a disadvantage, because without it, childcare commitments would mean that she was unable to continue in her job, then it could amount to indirect discrimination.

However, it was acknowledged that times are changing and it may be that a woman is not primarily responsible for childcare (where the father stays at home) or that a woman may not need to work flexibly to provide childcare (because other options are available) but only wants to do so. It was suggested that in such a case, the woman would not necessarily be considered to be disadvantaged by the refusal to allow her to work flexibly and her claim would fail. For so long as the take-up of additional paternity leave is so low, however, it will be a brave employer which argues that no assumption can be made that more women than men are affected by childcare obligations.

Time off for study or training

Another development in the field of work-life balance is the right for employees to request time off work to undertake study or training.

This applies to businesses with 250 or more employees. While the Government has launched a consultation exercise on whether the right should be repealed, retained for large organisations only or extended to smaller organisations as originally planned, no sensible employer should base its decisions on staff time off for these purposes on the extent of statutory compulsion – the case for allowing staff the chance to develop themselves is unarguable on many levels, whether in efficiency, morale or retention, let alone work-life balance.

‘Happiness’ in the workplace

The British work some of the longest days in Europe, often straining at the 48 hour weekly average imposed by the Working Time Regulations. A significant proportion of the workforce exceeds that average on a regular basis, even though usually entitled under the WTR to opt out of doing so. Some may feel that they have little option but it is beyond argument that many find happiness and fulfilment in their work and the income it brings, and that for them the idea of doing less work for less money, even were that option available, holds few attractions. The possible 4-8% figure referred to above for additional paternity leave-takers seems to support this.

It’s easy to conclude that the ideal work-life balance is a function less of pure hours and more of family and financial circumstances and working environment, all three (and other factors too) combining to dictate one’s sense of Cameronian General Wellbeing. A floor of basic rights against exploitation is one thing, but the legislators and policy-makers should beware of assuming that the only route to health and happiness is more time out of the office.

About Nigel Mackay

Nigel is an associate in the Labour & Employment practice group based in Squire Sanders Hammonds’ London office. Nigel advises on all aspects of employment law including both contentious and non-contentious matters.

Nigel also regularly produces and presents training sessions for clients.


Viewing all articles
Browse latest Browse all 6

Latest Images

Trending Articles





Latest Images