Getting smart on the “F” Word

Posted by Amanda Okill

Senior Associate

There’s an irony in business attitudes to the issue of flexible working. Evidence suggests that flexible working can work extremely well and it attracts talent. Business leaders recognise this, but for many, it’s still seen as an unattractive and frightening concept, essentially a dirty workplace word.

On 9th June 2015 the UK’s first detailed examination of flexible working opportunities was published by Timewise. It was based on national research which ranks jobs and UK regions according to how easy it is to find flexible work. According to the research 46% of people employed in the UK want to work flexibly. Yet only 6.2 % of the UK job advertisements with annual salaries of over £20,000 or more mention flexible working.

Nearly 90% of Senior Executives across the world believe that “organisational agility” is critical for business success (CIPD Research Report, HR; Getting smart about agile working: November 2014).

As an employment lawyer advising individuals who work flexibly, I find the attitudes in certain workplaces to this issue not only worrying but devoid of evidence.

Not long ago I advised a client working in the city and hoping to develop her career.  She was in a well-paid job and applied to work flexibly on return from maternity leave. The request was granted, providing for a four day week with a day at home. She made herself available on several occasions on her ‘day off’ for urgent matters and put in long hours on her working days.

But the arrangement did not work. My client was systematically excluded from projects and consequently her output did not justify her salary.  Managers in her department have been quite open as to why this is the case - ‘she’s not always there.’   Never mind the investment her employers have already made in her employment and ongoing professional development. Never mind the fact that she does not actually have to ‘be there’ in any event.  The irony here is that she has all of the gadgets, brilliant inventions of modern day technology which her employers went to the effort of installing in her home and which would enable them to contact her. Why bother if they are not used?

You’d be forgiven for thinking that this was an SME with limited resources. Not so. It’s a large organisation with both offices and clients based abroad. Its website promotes it as offering a ‘work/life’ balance.  Does it genuinely embrace flexible working? What we found is that a surprising number of part time workers have slowly been paid off over the last few years. So I’ll let you decide.  There’s no need to mention the industry, this happens time and time again in many organisations. And with the pay-off goes a wealth of skills, knowledge and experience. Very often a career loss as well.


So what is flexible work?

Section 80F of the Employment Rights Act 1996 confirms that a qualifying employee may apply for a change in terms and conditions if the change relates to the hours and times they are required to work, as well as the place of work.

The term ‘flexible working’ incorporates any arrangement which gives some degree of flexibility on how long, where, when and at what times employees work. As the flexibility can be in terms of working time, working location or the pattern of working it should not be seen as code for part time work – a flexible worker could be full time employee who simply carries out some of their duties from home.

Further examples are set out in the ACAS booklet Flexible Working and Work Life Balance:


What are some of the common misconceptions about flexible working?

1. That it’s a women’s issue.

This is a gross misconception. While it is true that women with caring responsibilities are more likely to benefit from flexible working arrangements, employers should be aware that it is of interest to a far broader group. A report published by the UK Commission for Employment and Skills 2014, for example, contained the startling statistic that 92 per cent of the Generation Y participants identified flexibility as a top priority when selecting a workplace.

Timewise reported one million men now choose to work part time. There are 5.4 million people working part time in in the UK by choice, a further 8.7 million who do not have that flexibility and want it. The figure is nearly half of the working population in the UK.
Flexible working benefits workers who would historically have been retired and who want to maintain a working life, just not full time. It also benefits the so called ‘sandwich generation,’ people who are caring for elderly parents as well as children at the same time.

The right to request flexible working is available to all employees.

2. That if you turn down a flexible request from a woman you may be sued for sex discrimination.

The Right to Request legislation does not create a right to work flexibly or part-time. It simply provides a statutory framework through which a request from an eligible employee to work flexibly must be considered. The request can lawfully be rejected if it cannot be accommodated and if due consideration has been afforded to it.
Business reasons are referenced to a number of grounds including the burden of additional costs, an inability to reorganise existing staff, a detrimental impact on quality, performance, or ability to meet customer demand, planned structural changes, and insufficient work for the periods the employee proposed to work.

In reality since the Right to Request came into force, relatively few claims have made their way to the appellate courts. Most flexible working claims have been made together with claims for direct or indirect sex discrimination; claims which could in fact have been made before the Right to Request came into existence.

3. That flexible working is bad for business.

Research shows that this is not the case. The CIPDs Research Report highlights long term advantages associated with improved employee work-life balance and job satisfaction. A case study in the report features Deloitte, the business advisory firm who in 2014 introduced a programme aimed at increasing agility around how people organise their working lives. The programme is based on three principles including a shift from visibility of the individual in an office to actual output; mutual trust; and two-way open communication.

By focusing on the output rather than working hours Deloitte is moving away from a culture of ‘presenteeism’ where people feel they must seek permission for adjusting the way they work.

It is right that flexible working is not suitable for all job types and there are genuinely good business reasons for refusing it in many cases. However, the world of work is changing as are the expectations of talented workers. It’s worth exploring how it could work, approaching it with both an open mind and a genuine desire to make a success of it.



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