Is flexible working legislation fit for purpose or is it so weak as to be of little real use except to employers who would probably accepted an informal request anyway? It's a question that many who have had a request turned down have asked themselves.
Under the legislation, there are eight fairly vague reasons an employer can turn a request down. Since the legislation was extended in 2014 to cover all employees, it has been watered down – there is no statutory right of appeal, there is only a vague three-month time period for considering requests and no need to give "a sufficient explanation" for using any of the eight reasons to turn down a request. Does it matter? Will our work culture change and become more flexible without the need for stronger legislation because the business case is so clear – it's what employees want, it makes for more dynamic businesses and it makes financial sense?
Good employers get that case and have forged ahead, pioneering new ways of working. Others need more support and examples of how to get the most out of flexible working. But there are still employers – and/or managers – who don't appear to get it. Which is where the legislation comes in, although, of course, legislation alone does not change a work culture.
So is 2017 the year to push for reform of flexible working legislation?
I asked three employment lawyers about their experience of the 2014 change in the law. Helen Frankland of Slater Heelis Solicitors said her firm, which has offices in Manchester, Cheshire and Sale; Danielle Ayres from Gorvins Solicitors based in Stockport and Manchester; and Owen Dear from Crossland Employment Solicitors in Oxfordshire. None had successfully taken a case to employment tribunal without a discrimination charge attached. Dear said this could partly be due to the amount of compensation available and to the cost of taking a case to tribunal. The introduction of Acas' early conciliation measures might also play a part, he added.
Frankland said the remedies available to employees under the flexible working legislation were “very limited”. She said an employee can generally only bring legal action if the employer failed to deal with their action in a reasonable manner; the employer failed to notify them of the decision on their application within the decision period; the employer rejected the application for a reason other than one of the statutory grounds; the employer’s decision to reject the application was based on incorrect facts; or the employer treated the application as withdrawn but neither of the grounds entitling the employer to do so applied.
Ayres said: “It is extremely easy for an employer to turn down a request as it is highly likely that there is something they can hook on to one of the eight reasons – with little evidence being needed to back it up.”
Dear felt good employers appreciated the need for a healthy work like balance and so recognised that unless there were sound business reasons for turning down a request they should try to accommodate it.
There are, however, some employers who just appear to be resistant to flexible working. Workingmums.co.uk’s annual survey found nearly one in five [18%] of working mums have been forced to leave their jobs because a flexible working request has been turned down. Over a quarter of mums in work [26%] have had a flexible working request turned down. Some 12 per cent said their employer did not even seem to consider their request at all and over a quarter [27%] said the reason given for turning down the request was not one which is allowable under flexible working legislation.
For women currently on maternity leave the figures were higher: 35% of those who had had a flexible working request turned down had had it rejected on grounds other than reasons which are allowable under flexible working legislation. Some 68% said they did not feel the rejection was justified. However, 79% did not appeal.
Anna Ives, founder of HR-puzzle.com, said: “I think the law on flexible working will change so that businesses need to consider it more seriously. It’s all very well saying people can apply for flexible working, but as times change and we need more flexibility in the system with parents and grandparents as well as carers requiring it and younger workers wanting to work differently the legislation will have to be stronger. It’s surely only a matter of time before another legal change is brought in. Whether that is stricter legislation, changes around the appeal for flexible working requests (which is currently not statutory) or ensuring businesses are flex friendly. Something has to change."