The continued spotlight on flexible working

According to a survey, only 6% of employees are working the traditional 9-to-5, and only a small percentage of those entering new employment would opt for those working hours.

YouGov survey

Options for working flexibly clearly remain key to a motivated and loyal workforce, and are essential to attracting talent - especially with an increasing millennial workforce and rapid advances in technology. The recent YouGov survey, which was commissioned by fast-food chain McDonald's, has found that just 6% of employees work between the traditional hours of 9am and 5pm. The results suggest that, of the 4,000 people surveyed, almost half already worked flexibly with arrangements such as job sharing, reduced hours, compressed hours or amended hours in place. 70% expressed a desire to work flexibly in the future.

Most of the people surveyed also confirmed they would prefer to start the working day earlier, so they could leave earlier to balance their family and other commitments. 37% confirmed that the preferred working hours were between 8am and 4pm, all of which continues to indicate that the concepts of work-life balance and wellbeing remain high on everyone's agenda, both in relation to their existing employment arrangements and when seeking new opportunities. Others confirmed they would prefer to work a longer day in order to work a shorter week. Having autonomy to work in a way which best suits the employee, and the employer, is clearly a road that needs to be followed here, where operationally possible, as further research suggests that such workforces are more productive.

Flexible working

Every employee has the right to request flexible working, provided that they have 26 weeks' continuous employment service. There is no longer the need for the employee making a request to work flexibly to do so in order to care for a child or to be a carer of an adult. There is also no set procedure in dealing with a request. The law simply states that an application for flexible working, made by an eligible employee, must be dealt with in a reasonable manner, and within a period of three months (which includes any appeal).

The change in legislation in June 2014 has undoubtedly increased the number of applications for flexible working made, but perhaps not as much as expected. Options for flexible working, for whatever reason, could include requests for:

  • a reduction in working hours (working part-time hours or reduced hours); 
  • a change in working pattern (varying the core hours worked, which could include compressed hours, a nine-day fortnight, term-time working or annualised hours); or 
  • a change in working location (home or remote working, or other agile working arrangements).

The uptake of flexible working

Despite all of the options available for flexible working, and the extended statutory right for employees to request to work flexibly since June 2014, a third of those surveyed believed that their current employer would not allow them to work flexibly. In response to the survey, Peter Cheese, chief executive of the CIPD, said that employers willing to offer flexible working would attract a higher number of applicants, but agreed the uptake of flexible working was still low. Of course, when refusing an application for flexible working, employers must have a sound business reason for doing so. Their reason must fall into one or more of the eight statutory reasons:

  • the 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/or 
  • planned structural changes.

Grounds for refusal such as 'it will open the floodgates to more requests' will simply not suffice. Such a response to female employees also runs the risk of claims of indirect sex discrimination which can be very costly to defend, both financially and from a reputation perspective.

Going forward

Flexible working is no longer seen as a'nice to have. Employers must properly and reasonably consider all requests for flexible working, taking into account the different ways in which employees seek to work nowadays, and thinking about how such applications and a flexible workforce may benefit their business.

Some top tips for dealing with applications for flexible working include:

  • dealing with requests in a reasonable manner (the ACAS Code of Practice provides useful guidance on what that looks like); 
  • encourage the applicant to consider the impact their request will have on their colleagues. Tensions can often arise where others feel they have to pick up the slack; 
  • ensuring that any reasons for refusing the request, if applicable, fall within at least one of the specified reasons; 
  • keeping an open mind and challenge any policy that particular roles can only ever be done on a full-time basis; 
  • if there are genuine business reasons why flexible working is not feasible, make sure these are properly evidenced and documented and not just based on the personal preference of managers; 
  • note that an argument that 'we already have too many people who work part-time/from home etc.' is not one of the permitted grounds for refusing a request; 
  • consider whether a trial period could be offered to settle any concerns about the requested working pattern; 
  • even if you can't offer the exact changes requested, think creatively and see if you can suggest a compromise; 
  • remember that the right to request is available to all employees, not just working mothers or those with caring responsibilities. Research suggests that childless employees, whether male or female, feel that options for flexible working are biased towards those with children, making their own desires for a work-life balance a distant dream; and
  • bear in mind the risk of indirect sex discrimination, and other possible claims of discrimination, at all stages of the process. Properly consider all employee commitments outside of work where appropriate, including religious commitments, or an employee's own medical position or of someone they care for.


This information is for general information purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Please contact us for specific advice on your circumstances. © Shoosmiths LLP 2024.



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