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The "Right to Request Flexible Work" - Our advice to employers

How employers should respond to the government's flexible working regulations*

To respond to a request for flexible work, do employers have to know anything more than one word - like "No"?

The answer is that they certainly do. The new regulations in the UK place an obligation on employers to "consider requests seriously". A simple "No" isn't good enough - employers must have a reasoned argument based on a valid business case as to why flexible work is not an option for the employee concerned.

For that matter, a simple "Yes" isn't appropriate either. Agreement to the request for flexible work has to be followed by action, and making the necessary changes to implement flexible work.

Organisations can no longer see flexible work as an optional extra, or an issue to be considered later. The new regulations require them to understand the issues and the practicalities, and to understand how they are to be implemented - or not - in their business.

Understanding the issues

Employers need to get to grips with:

  • how the regulations work - and hopefully our Flexibility summary will be of use here; and

  • the wider context of flexible work - the kinds of flexible work that may be relevant to, and requested by, their employees. To find out about these, just browse through the rest of this website!

The government's advice is based on the principle that greater flexibility is good for businesses, as well as individuals. Each employer is expected to be able to interpret this principle in their own situation.

Understanding how the various flexibility options work in practice is important for responding to particular requests. The process of considering a request will work much better if it can be dealt with in a friendly and constructive way, and this is more easily done if the employer is well informed about how the different kinds of flexibility work in practice.

More than this, however, the employer needs to understand the constraints that may have been holding them back previously from taking advantage of flexible working. For example, do some managers insist on unnecessary levels of control over their staff, as in

  • wanting all staff to be in the office at certain times, regardless of peaks and troughs in workload, or where their first visit of the day should be?

  • insisting that staff are constantly on hand to answer the manager's questions in person?

In either of these cases, staff may be deployed according to the manager's convenience and limitations, rather than according to the real needs of the business. More flexible working patterns may be resisted by the manager, but the business case for doing so would be poor.

There is a wide range of potential benefits from introducing flexible working practices. Many companies have successfully introduced them to achieve benefits such as:

  • improved recruitment and retention

  • reducing absenteeism

  • reducing costs, particularly property, travel and overtime costs

  • extending hours of operation

  • improving customer service

  • responding more effectively to changing market conditions.

So, any request for flexible work should be seen not primarily as an obstacle to overcome, but an opportunity to re-evaluate and improve the way work is organised.

It is also important to look closely at the components of work, rather than making sweeping judgements about a person's work as a whole.  It is often the case that certain tasks within a job are not so time-critical or dependent on colleague/customer interaction. This can enable those tasks to be done at a different time in the working week, or at a different location.

Setting up flexible work policies

But why wait for the requests to come in? It is much better to be prepared, having in place a basket of flexible work options, and a framework that enables managers and staff to see how different options may apply to different roles, tasks and situations. This also takes away the necessity to reinvent the wheel every time a request comes along.

A further advantage may be that if flexible work options are available as a matter of course in the company, staff should not need to make a request under the Employment Act. This potentially gives the employer more control over future variations to flexible working and exit arrangements should it prove to be unsatisfactory.

Policies need to cover:

  • the range of options available

  • eligibility issues

  • contractual issues

  • compliance with other legislation (e.g. Working Time Directive, Health & Safety legislation)

  • access issues and provision of kit and connection, in the case of home-based working

  • training issues

  • line management/supervision

  • variation in arrangements

  • colleague cover in the case of illness, etc

  • who in the organisation should deal with requests.

Actions also need to include the training of managers to supervise flexible workers, and to implement policies consistently and fairly.

Making flexible work work for your company

In essence there are 3 levels of response to the new regulations (or 4 if you count non-compliance!):

  • Do minimum - that is, respond to individual requests as they come up, and reach ad hoc conclusions

  • Be prepared - that is, develop policies and flexible work options that are available for requests from eligible parents

  • Do the Full Monty - that is, take an integrated and business-focused approach, extending flexible work options to all staff whose roles will allow it.  This involves linking flexible work to other business aims of reducing costs and increasing productivity.

Many organisations will no doubt need further guidance about how to do this - and there's no better place to start than our Complete Guide to Flexible Working.

It is important to note that the costs of getting it wrong can be considerable:

  • failing to maximise potential business benefits

  • wasting time in dealing with requests in a piecemeal and uncoordinated way

  • potential staff and union discontent

  • expensive arbitration/employment tribunal actions and decisions - it's worth remembering how costly these are even when the grievance is rejected.

* The guidance presented here is provided as a general and educational outline.  It is not intended as legal advice, and should not be taken or used as such, or be used as the basis for business decisions, for which readers should rely on their own sources of legal and professional advice.



April 2009




All material copyright Flexibility.co.uk 2009