An employee right to day one flexible working requests – Is this idea flawed?

The Labour Party has recently pledged, they are elected, that they will introduce the right for employees to apply for flexible working from day one of employment rather than the current position of an employee having to wait until their twenty-sixth week of employment.

The idea of ‘day one rights’ is predominantly to help ‘level the playing field’ for candidates with dependants to secure new employment.

However, to what extent a ‘day one right’ to make a flexible working request (‘FWR’) will actually benefit employees or an employer is, in our opinion, dubious.

Currently, an employer must deal with an FWR in a timely manner (normally within three months) and can refuse the request for one or more of the following reasons:

• The burden of additional costs;
• Detrimental effect on ability to meet customer demand;
• Inability to reorganise work amongst 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; or
• Planned structural changes.

If an FWR is refused, then the employee can appeal. However, an employee’s rights to have an Employment Tribunal review the employer’s decision is predominantly limited to procedural failing by the employer. Further, the compensation awarded by the Employment Tribunal in these types of cases is very limited, unless there is a related discrimination issue (usually indirect sex discrimination.)

On the face of it, it may seem beneficial for employees to be able to make an FWR on their first day of employment, however this may well be a pointless exercise.

For example, if an employee is appointed to a full-time role then presumably an employer will have advertised that role for a set number of hours to meet a specific business need.

If the current flexible working legislation (other than the time period for submitting an FWR) remains the same then it is likely that an employer would simply refuse the FWR for one or more of the above reasons, rather than go to the time and expense of recruiting additional staff.

This could result in the employee then not being able to continue in the role due to their personal commitments, meaning that neither the employee nor the employer has benefited from this proposed change to the FWR regime.

Whilst the same may be said of a request made after twenty-six weeks of employment, the difference is that an employee in that situation will not have accepted a role with unrealistic expectations regarding their prospective employer’s ability to alter their working hours following an FWR.

Further, it is more likely that the business will be able to accommodate an FWR due to developments within the business that have arisen during an employee’s first six months of employment.

Additionally, the parties during that time period may have developed a working relationship and pattern which makes some flexible working options more palatable to the employer, such as home working or compressed hours, resulting in an increased prospect of the FWR being granted.

A more sensible approach to assist candidate with dependants may be to require employers to advertise roles as being suitable for job share if indeed this is the case.

Alternatively, if flexible working is desired by candidates from day one it seems sensible to allow candidates to make FWR at the application stage, which can then be discussed at interview, rather than immediately after they have accepted the role.

In summary, we do not believe that a ‘day one right’ to make an FWR would be of any real benefit to either an employer or employee and that there are far more sensible approaches to flexible working that the government could implement to help ‘level the playing field’ for candidates with dependants.

Due to the procedural nature of flexible working requests and their relationship with discrimination legislation, this can prove a be a tricky area.

WHAT TO DO NEXT

If you require further advice on issues of discrimination or flexible working requests, then please do not hesitate to contact Oakwood Solicitors Ltd on 0113 200 9720 or alternatively you can contact us via ‘live chat’.