HR & Management

Flexible working: Can it work in growing businesses?

4 min read

05 March 2013

Marissa Mayer's ban on home working might inspire a few business leaders to follow her lead, but on what grounds can an employer decline the request for flexible working?

Yahoo’s move to get staff back into the office by banning remote working is at odds with government plans to expand flexible working to all businesses. The question is: Can flexible working work in small and growing enterprises?

Businesses worry that they will lose control of their workforce if they offer flexible working. But with effective organisation and planning, this does not have to be the case. In fact, smaller, adaptable businesses are in a unique position to be creative with flexible working.

There are huge commercial advantages to having a more flexible workforce. The key advantage is retaining good staff, particularly talented women, who are more likely to stay with an employer that might pay less but accommodates their work/home life. The same applies to fathers who want to be more involved in their children’s upbringing.

So, who qualifies for flexible working?

Employees with 26 weeks or more of continuous service have the right to request flexible working if:

  • They have children under the age of 17 or disabled – entitled to a disability living allowance – children under the age of 18; or

  • They are caring for spouses, civil partners or partners, relatives – including half-blood, step or adoptive relatives – or someone who lives at the same address as the employee.

The right to request flexible working is not restricted to the biological parents of a child as it also applies to adopters, guardians, foster parents, foster carers, civil partners, partners, and those in whose favour a residence order is in force in respect of a child.

There is no automatic right for an employee to work flexibly, but you have a statutory duty to give serious consideration to their application. This can only be refused on specific grounds.

If flexible working does not suit the business’ needs, then the employer is entitled to reject the request. However, the employer should focus on the reason why the request is not suitable. 

Currently, the request can be refused on the following grounds:

  • Burden of additional costs;

  • Detrimental effect on ability to meet customer demand;

  • Inability to reorganise work among existing staff;

  • Inability to recruit additional staff;

  • Detrimental impact on quality;

  • Detrimental impact on performance;

  • Insufficiency of work during the periods the employee proposes to work; and

  • Planned structural changes.

Employers should also be mindful that a failure to entertain an application for flexible working may lead to financially significant claims of direct or indirect sex discrimination and/or constructive unfair dismissal.

The government intends to increase flexible working throughout the British workforce -their response to the recent “Modern Workplaces” consultation is eagerly awaited and a new consultation will soon be launched into plans to introduce a new system of flexible parental leave. This allows parents to share parenting responsibilities.

Finally, plans to extend the right to request flexible working to all employees will become a reality in 2014. The current statutory procedure under which employers consider flexible working requests, will be replaced with a duty to deal with requests in a reasonable manner, within a “reasonable” period of time. Acas will produce a statutory Code of Practice on the meaning of “reasonable”, which it will consult on in due course.

Many businesses may see these initiatives as more red tape but in our technology driven 24/7 world, flexible working can be an essential component in retaining the right workforce and maintaining competitive advantage.

Heather Platt is a barrister with Riverview Chambers.