Fresh Business Thinking in association with BT is promoting Work Wise Week and BusinessHR has kindly allowed us to print their fascinating article on flexible working which you will find below. Print it and have a good read as there are some great ideas there!

BT, as a partner for Work Wise UK would like to invite you to be their guest at the 2007 Annual Summit – Creating a Smarter Working Britain, taking place on Wednesday 16th May at the QE11 Conference Centre between 09:30 a.m. and 4:15p.m.

Keynote speakers include:

* Brendan Barber, Secretary General, TUC
* Sir Digby Jones, Skills Envoy
* Edmund King, Executive Director, RAC Foundation
* David Frost, Director General, British Chambers of Commerce.
* David Lennan, Chairman, Work Wise UK

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Introduction

Most people are familiar with the concept of “flexitime”, whereby an employee works specified “core hours”, but has the flexibility to work the remaining contracted hours at any time within certain broad specified bands of time.

However, a whole range of non-standard working arrangements have become increasingly common over the last decade. This is largely as a response to meeting recruitment difficulties, but also to improve motivation, to help retain qualified and experienced staff, and often to support and encourage equal opportunities and diversity initiatives. In addition, there has been pressure from employees who battle to maintain a satisfactory balance between their work and other commitments. Also from the government, who have been taking legislative steps to facilitate this.

This is now commonly referred to as “work-life balance” and initiatives taken by employers to help employees manage their work-life balance to best meet their needs and aspirations include the following:

* Flexi-time
* Staggered hours
* Time off in lieu
* Compressed working hours
* Shift swapping
* Self-rostering
* Annualised hours
* Job-sharing
* Part-time working
* Term-time working
* Homeworking
* Tele-working
* Breaks from work – including unpaid sabbaticals, or career break schemes.

The most common of these are part-time work, job sharing and flexitime. Many of these offer non-financial benefits which give the employee greater control of his/her life, and enable a more satisfactory lifestyle to be achieved.

This overview deals with the statutory right to request flexible hours, and also looks at some of the other options. When considering any of these varied arrangements we would stress the need not only to consult fully with the individual involved, but also with all other staff affected: If you are considering a request from someone for a reduction in hours, how will the extra work be distributed? If you are considering more flexible working arrangements, what implications will this have in terms of cover, or the undertaking of routine tasks which have to be done at certain times? How will this impact on your ability to meet customer requirements at certain times of the year/month/day? By consulting fully, any issues will be properly aired and hopefully resolved, and by reaching agreement in advance this should prevent any feelings of resentment amongst other employees.

Flexible working – the statutory requirements

Parents of young or disabled children have the right to request flexible working arrangements. This will be extended in April 2007 to employees who have caring responsibilities. However it should be noted that the right is to “request”, there is no automatic right to work flexibly as there will always be circumstances where the employer is unable to accommodate an employee’s request.

Eligibility for parents of young or disabled children:

The right applies to all employees (not “workers”) who have a child aged under six (or disabled child under 18), and who have completed at least 26 weeks’ continuous service at the date the request is made.

In addition, the employee must,

* Make the application no later than two weeks before the child’s sixth birthday (18th birthday in the case of a disabled child). (This will be simplified as from 6 April 2007 to enable requests for a child under six to be made up to the day before the sixth birthday.)

* Be the mother, father, adopter, guardian or foster parent of the child, or be married to, or the partner of, such a person.

* Have or expect to have responsibility for the child’s upbringing.

* Be making the application to enable him/her to care for the child.

* Not be an agency worker.

* Not be a member of the armed forces.

* Not have made another application to work flexibly under the right during the past twelve months (regardless of the outcome).

Eligibility for carers:

The government has now decided that a “carer” will be defined as an employee who has at least 26 weeks’ continuous employment at the date the application is made, who is or expects to be caring for a person aged 18 or over, and who;

1. is married to, or the partner or civil partner of the employee, or

2. is a relative of the employee, or

3. falls into neither category (1) nor (2), but lives at the same address as the employee.

They define two categories of relative,

1. an “immediate relative” includes a mother, father, adopter, guardian, parent-in-law, son, son-in-law, daughter or daughter-in-law, and

2. a “near relative” is a “brother, brother-in-law, sister, sister-in-law, uncle, aunt or grandparent”, including half blood relationships eg half-brother or half-sister.

Both options include adoptive relationships. And a “partner” is defined as someone who, in the context of caring for both children and adults will be defined as the other member of a couple consisting of either a man and a woman who are not married to each other but are living together as if they were husband and wife. Or, two people of the same sex who are not civil partners of each other but are living together as if they were civil partners.

Interestingly, the government decided it was unnecessary to define the nature of care involved. It believes that those employees involved in “substantial and regular care” will have sufficient cause to request a permanent change to their contract of employment. It is estimated by the DTI that 6.5% of the working population will fall within the definition of carer and that 1.4 million carers will be eligible to request flexible working.

How to make a request:

The employee may request a change to his or her contracted hours of work, times of work and/or place of work.

A request must be put in writing (email is allowed), it must be signed and dated, must confirm the relationship with the child/person being cared for, and must state that it is such an application and confirm that no previous applications have been made in the last 12 months. In addition, the employee is required to specify the working pattern he/she wishes to adopt, and to explain the likely impact on the business, including how the request could be accommodated. The employee must also specify when he or she would like that change to take place. You may wish to use our standard request form Paid up members, or Pay as you go. To help ensure the employee provides all of the necessary information.

The employee may request, for example, a change of working hours, a change to the times he/she is required to work, or to work from home. Some requests may be minor: for example a delay in the start of working time to accommodate the school run, others may be more significant.

The employee should consider his/her request very carefully as only one application can be made each year, and an accepted application will normally mean a permanent change to the employee’s terms and conditions, unless otherwise agreed. Employees who have been granted more flexible arrangements will not have the right to insist on a return to full-time working (or a return to their previous hours, or pattern of working, whatever these were) once their caring responsibilities have ceased or diminished. Therefore any proposals for change should be fully considered, especially where these may result in a drop in salary. The Regulations do seem to allow the parties to agree to a temporary change (if they wish) but many employers would be reluctant to guarantee that employees could revert back to their previous hours in several years’ time; however this may be a preferred option in some (limited) cases. Also, a trial period may be agreed.

Following receipt of a request:

Since the timetable is strict for handling such claims, it is good practice to acknowledge receipt of a request in writing. Also do check the employee is eligible to make such a request. If any of the required information is not provided in the request, then employers should inform the employee that the application is incomplete, and explain what further information is needed.

On receipt of a request the employer must arrange a meeting to discuss this with the employee (unless the request is simply accepted and the employee notified in writing of the variation agreed to and the date on which it will take effect). This meeting should take place within 28 days of receipt of the request. If the person who would normally consider the application is on sick or annual leave, the 28 day timescale commences on the day the individual returns. At this meeting, at which the employee may be accompanied by a fellow employee, the employer should discuss how best the request may be accommodated, and consider any other alternatives which may be a better solution.

Following the meeting, the employer must provide a written decision Paid up members, or Pay as you go within 14 days of the date of the meeting.

If the employer agrees to the request, this should be confirmed Paid up members, or Pay as you go in writing, specifying the date on which the new contractual arrangements will apply and confirming what these arrangements are. Any changes are a permanent change to the terms and conditions unless otherwise agreed.

Reasons for refusal:

There is no automatic right to work flexibly, as there will always be circumstances where the employer is unable to accommodate the requested work pattern. Employers who reject an application will have to write and confirm Paid up members, or Pay as you go this, providing a specific business reason, which must be one of those permitted by the legislation, eg;

* detrimental effect on the ability to meet customer demand,
* inability to reorganise work within available staffing,
* inability to recruit additional staff,
* detrimental impact on quality,
* detrimental impact on performance,
* burden of additional cost to the business,
* insufficient work during the period the employee proposes to work,
* planned structural changes, or
* any other such grounds as the Secretary of State may specify by regulations.

In addition, sufficient explanation must be included as to why the chosen grounds apply in relation to the employee, together with details of the appeal procedure.

Employees can complain if the employer rejects a request based on incorrect facts – but cannot complain because they feel the employer’s decision is unfair or unreasonable. But a tribunal examining a claim will investigate the evidence supporting an employer’s decision to reject a request to see whether it is based on incorrect facts, and may ask what effect granting the request would have had. So it is advisable to create a papertrail showing your investigations prior to reaching a decision to reject a request and to ensure that you have sufficient evidence to justify your decision.

A further word of caution: Whilst it may be possible to refuse a request for flexible working under one of the above business reasons, employers still also need to bear in mind indirect sex discrimination which will continue to play an important role in achieving flexible working patterns. A female employee may claim indirect sex discrimination if she feels that her request has been unfairly refused, and discriminates against women, as the compensation for this is unlimited, and can include an award for injured feelings.

Right to be accompanied:

The employee may ask to be accompanied at any meetings held in relation to his/her request, by a fellow worker – who has the right to paid time off during working hours to attend.

The companion is allowed to address the meeting (but not to answer questions on behalf of the employee) and to confer with the employee during the meeting. If the chosen companion will not be available at the time proposed for the meeting, the meeting should be postponed until a convenient time can be found within seven days of the date initially proposed by the employer.

Neither the employee nor the companion may be subjected to any detriment as a result of the employee seeking to exercise the right to be accompanied. Failure to allow a companion may result in penalty of up to two weeks’ pay if the employee complains to a tribunal.

Appeals:

Any employee who feels that he/she has been unfairly treated by the employer’s refusal of his/her request has 14 days in which to appeal against the decision. An appeal should be made in writing, setting out the grounds for the appeal, and be dated.

Unless the employer decides simply to agree to the request and confirms Paid up members, or Pay as you go the agreement in writing, the employer must hold a meeting to hear the appeal within 14 days of the date on which the notice of appeal is given.

If the appeal is upheld, the employer should, within 14 days of the meeting, set out in writing the contract variation agreed to and the date on which the variation is to take effect. Where the employer dismisses the appeal, the grounds for the decision and sufficient explanation as to why these grounds apply should be confirmed Paid up members, or Pay as you go in writing – again, within 14 days of the meeting.

Timescales and meetings:

The above timescales may be extended by agreement (in writing) between the employer and employee. If the employee fails to attend two or more meetings without providing a reasonable explanation, the employer may treat the application as withdrawn (although it is good practice to write to the employee to confirm this).

Remedies:

A claim to an employment tribunal may only be made in respect of the following;

* failure on the part of the employer to hold a meeting with the employee, or to notify the employee of the decision: compensation of up to eight weeks’ pay (subject to the statutory maximum on a week’s pay as set out in the Employment Rights Act 1996),
* failure to comply with a request to be accompanied by a fellow worker – compensation may be awarded of up to two weeks’ pay (subject to the statutory maximum on a week’s pay).

There is currently no mechanism for providing a remedy to an employee whose employer unreasonably refuses a request to work part-time, or who gives a reason which is different to one of those set out above, although tribunals can order the employer to reconsider the application. However, the Secretary of State has retained a power to impose penalties where an employer has failed to provide this information, so this may change!

If however, the employee feels that the refusal to a flexible working request is indirect discrimination on grounds of sex, then compensation (which can include an award for injured feelings) would be unlimited in respect of a successful claimant.

Further advice on agreeing more flexible changes:

If you are considering requests which involve a reduction in hours, or changes in the number of days worked, do consider the following – the list below is not exhaustive and some of the items may not be appropriate, but it is a useful starting point! If considering home-working, see the separate section below.

* What are the new hours of work and how will these be measured (don’t forget your obligations under the Working Time Regulations Paid up members, or Pay as you go.).

* If a small reduction in hours away from home is requested, can lunch/breaks be reduced to accommodate some of the reduced hours required? Or flexible start times/lunch hours/finish times within an office so that everyone gets what they want?

* What effect will the change in hours have on other staff? If reducing hours, how is the extra work going to be distributed? If changing hours, will this have any affect in terms of cover for phones, reception, dealing with client enquiries, other routine tasks etc which are timed to meet specific deadlines. Do consult with anyone else affected – if you can reach agreement on the best way forward this may prevent bad feeling or resentment from others.

* Might a job-share be a solution?

* If the job involves travel, for example working at clients’ premises, can the changes be accommodated so that clients’ needs are still met?

* If term-time only working is requested, it would be advisable to specify that holiday entitlement must be used during this “non-working” period, and that holidays (other than perhaps odd days) must not be taken during term time.

* How will holiday and sick leave be affected/ monitored? (see our section on part-timers Paid up members, or Pay as you go.)

* How will any variable pay or bonuses be affected? (as above)

* Are pay and benefits pro-rated appropriately? (as above)

The remaining sections deal with the other common types of flexible working. In line with your Equal Opportunities or diversity policy, you may wish to consider these for a range of reasons, not just for assisting staff with childcare responsibilities. You may find that staff appreciate these policies and accept them more enthusiastically if the criteria for consideration are broadened.

The business advantages of taking a more flexible working approach are listed in our guide to flexible working.

Part time working:

See our separate legal overview on part-time work Paid up members, or Pay as you go. In a survey of 3,545 UK employers, 98% replied that they offered part-time work, an increase from 63% in 2000.

Homeworking:

If an employee asks to work from home, there are a number of implications which need to be considered, including the following:

* Management

– How to manage someone you cannot see – consider the need for regular routine meetings, reporting requirements, don’t forget training and development needs – especially in IT requirements. Many IT staff report increased work loads when homeworking is first introduced as they have to provide training and guidance to homeworkers and deal with operational problems, particularly in the early stages.
– How to gain access to the home (bearing in mind the right to privacy).
– How you will measure productivity.
– Contractual issues – should you agree to homeworking as a privilege, not a right? With you retaining the right to insist on a return to work if you feel it is being abused? Or would a change in circumstances be too expensive to accommodate? Will you give the employee the right to return to office-based work if he or she finds that home working is not the solution? You will also need to specify whether the new arrangements are made on a permanent or temporary basis, and if temporary, for how long the agreement will last, and whether it will be subject to review. You may wish to view our template homeworkers’ contract.

* Working hours and conditions

– How to monitor – if necessary.
– When and how to contact the person – remembering that staff have the right to privacy out of hours.
– Notification of absence and working time and other procedures for reporting in to the office
– What will be allowed as expenses – eg travel to and from your normal place of business? If required to travel to meet with you at the office, will such travelling time be paid etc? Will you make any contribution towards heating, lighting etc?
– Meeting – required to attend routine meetings?
– Training – requirement to attend business or other premises.

* Communications

– How to achieve sense of belonging – ensure the person doesn’t become isolated.
– Sense of trust.
– Ensure employee is kept up to date.

* Equipment

– Phone (separate line?), computer and any other equipment.
– Rules regarding personal use of this equipment.
– Maintenance of equipment.
– Allowance for small purchases – eg stationery?
– Internet and email use and policy.
– Data protection requirements – both storage and access to information, and also ability to retrieve essential information if the worker is absent/ill.
– Security – is the information stored on the equipment kept securely? Does the employee have the appropriate methods of discarding waste material (eg shredders etc).
– Remote access – to emails and phone messages whilst away etc – both by the employee and by the employer

* Health and safety

– Normal health and safety legislation applies, see homeworkers Paid up members only.
– Requirement to have a risk assessment

* Insurance

– Personal and public liability.
– Do you need to extend your insurance cover to cover work equipment not kept in the office?
– Employee’s home insurance must cover changed use – has the employee been advised to inform the home insurers and also mortgage holder (if any) of the change in usage of the home?
– Access by loss adjusters.
– Planning regulations

* Taxation

– There may be a liability for capital gains tax if the premises are sold.
– Travel to and from the office – is this covered by expenses or not?
– Homeworkers may claim a tax allowance for expenses for working at home, provided there are no appropriate facilities available to the employee on the employer’s premises and the employee has no choice between working at the employer’s premises or elsewhere.

Note that any request to work from home should be seriously considered; refusal is capable of amounting to indirect sex discrimination. And remember to consider those left in the office! Most employers focus on the manager and the homeworker only – the immediate office-bound colleagues may have to cover for the absence of the homeworker and pick up much of the routine work so this needs to be covered also.

See also our template homeworking Paid up members only. policy, and our health and safety Paid up members only. overview on homeworking.

Teleworking:

Teleworking has been broadly defined as work which makes use of IT, and is carried out away from the employer’s premises on a regular basis. It therefore covers many mobile workers, as well as those who work from home.

The EU have a draft voluntary “framework agreement” on teleworking, which, whilst not legally enforceable, gives guidance on the sorts of issues employers should consider before introducing such arrangements. It recommends that teleworkers enjoy the same employment rights and conditions as their office-based colleagues. In the code, employees are given the right to return to conventional working at either the employee’s or employer’s request, and employers are generally expected to provide equipment used by teleworkers and take responsibility for data protection safeguards. They are also responsible for the health and safety of their teleworking employees.

The TUC, CBI and CEEP UK have also published a free guide to teleworking.

Job-sharing:

Job sharing is increasingly used to cover the requirements for a full-time worker. Job sharing is especially effective in cases where it is essential that a particular job is covered during the whole working day (such as a receptionist), or where the employer may benefit from the input of two people, especially where the role is of a senior nature, and may utilise specific professional skills.

The commonest types of job shares are;

* married couples eg running a pub or residential accommodation,
* joint MDs or senior office holders,
* people with children or other caring commitments who do not wish, or are unable, to work full-time.

For these, the contractual issues are usually different;

* married couples are usually engaged jointly, ie two people agree to deliver one contract and have joint responsibility. If one is in breach, then both are liable to dismissal – so the contract needs to specify this (but the duties of both have to be meaningful for joint dismissal to be fair). In this case, the contract would include appropriate clauses making this clear.
* MDs are usually contracted as a job split – in which case the contract would normally be for two separate part-time roles, and work would be assessed and paid on an individual basis.
* Those who do not wish to work full-time can be contracted as a job split (ie two x part-time jobs), either on a time or on a functional basis, or as a true job-share (where the duties of the post are undertaken in full by both parties). See our template job-share contract.

The advantages of job-share arrangements include the additional skills and ideas provided by two people, additional cover provided for each other, and if holidays are taken at different times at least half of the job is still done. Retention can be higher, and job sharing is a means of attracting and retaining those within the business who have the necessary skills and experience but who are unable or unwilling to work full-time.

Issues to consider when setting up a job-share arrangement include the following;

* Will the contracts be separate, interdependent or joint?
* Consider the job description and if/how this will be split – also add the requirement to communicate between themselves and others. How will any decision making be dealt with? Are you going to give individual responsibility or not? Consider tasks such as budget control and expenditure – who is going to have responsibility. Consider line management and the extent to which some procedures may need to be carried out jointly (eg appraisal, discipline). How you will manage a situation where the job sharers’ views/expectations differ?
* How will working hours/days be scheduled? Will these be set in advance, or left to individual/joint negotiation?
* Must the parties cover for each other during sickness and holidays? If so, to what extent?
* Good communication systems are essential. For some roles a comprehensive hand-over is essential, and job-sharers may need to programme in a period of overlap, especially in jobs with more responsibility. Equally, good record keeping systems will assist in this.
* Consider your appraisal scheme – will appraisals for the job-holders be done jointly or separately? Will performance targets be individual or joint? (This will depend on the extent to which the jobs are separate or truly shared.)
* How will promotion be dealt with? Are they “one” or can they be split?
* Opportunities for training should be provided to both job-sharers, and they should both be invited to business functions, important meetings etc.
* Consider payment – will any performance related pay be based on individual performance or joint performance?
* How will bonus and benefit packages be allocated? – consider sick pay, pension rights, cars, financial assistance etc. With regard to benefits such as bank holidays, a common sense solution is to apportion these pro rata and add them to holiday entitlement, thus enabling a fair allocation.
* Overtime payments – you may wish to consider additional payments if requiring holiday or sickness cover on a full-time basis when the other job-share partner is absent. Also there may be additional cost if you require duplicate attendance at meetings/functions/training courses.
* What happens if one partner resigns? It is common for job-sharing contracts to stipulate that in the event of one partner resigning or leaving, the full-time job will first be offered to the remaining partner, alternatively a replacement will be sought. However, if a replacement cannot be found then the arrangement will come to an end, and if the business is unable to offer the remaining person suitable alternative work, or for the remaining person to continue part-time with the other half of the job being re-allocated, then he/she may be dismissed. However, this is an opportunity to re-think work distribution and roles, and a solution is usually found rather than losing both experienced employees.

* If one partner proves unsatisfactory and is dismissed, are both to be dismissed? (see above)
* Outside work – will you retain your standard limitations on undertaking other paid employment outside your business or will you relax this? Is it possible to job-share two posts within the business?

This may seem a long list and look pretty onerous, but the advantages of job share can easily outweigh the administrative issues to be resolved.

Case law may make it easier for employees to insist that their employers give proper consideration to proposals for a job share. In Hardys & Hansons plc v Lax, the Court of Appeal decided that an employer’s refusal to permit job sharing could amount to indirect sex discrimination. Prior to this, applicants had to show that refusing a part-time working request would have a disproportionate effect on women, or that female employees were disadvantaged – and if no-one is job sharing then there could be no detrimental treatment on grounds of sex. However, this case confirms the tribunals’ ability to decide, in discrimination cases, whether the provision, criterion or practice at issue is objectively justified.

Career break schemes:

Career break schemes are offered by many employers primarily as a way of retaining a link with your business and thereby hopefully enticing back employees who wish to take time out from their careers. But a career break scheme may also help to attract high quality applicants by demonstrating a commitment to long term career development and may complement other equal opportunities policies and practices.

Career breaks may be desired by employees for a number of reasons; the most common is for the care of young children, but career breaks can also be used for care of dependents, to undertake a course of study or research, to travel, or pursue some other interest.

Care needs to be taken with the wording of agreements for long-term career break schemes, to ensure that an employee cannot argue that his/her continuity of employment has been maintained. A custom and practice of allowing any other rights, such as pension rights, to continue could enable the employee to claim that his/her continuity of employment has been maintained for other purposes, such as redundancy or unfair dismissal – which may not have been intended! See our template career break Paid up members only policy.

It is advisable to differentiate between short term career breaks, and longer periods where the employee may be required to resign. In the latter cases, it should be clearly specified whether the contract of employment is in place during the career break, and whether previous service will be counted. It is possible for the scheme to require participants to work for a specified number of weeks each year, for which they would be paid, and also to guarantee a post at a certain level, if the employee wishes to return.

Factors to take into account when considering whether to introduce a career break scheme include:

* Firstly finding out whether employees would welcome such a scheme and how many of them would be likely to take it up.
* Whether the scheme will be restricted only to those with dependent children or others, or whether this should be expanded to cover other requirements, eg sabbaticals, career development, study, travel.
* Costs of setting up and administering a scheme (set against the likely savings on recruitment, training and retention).

If you decide to introduce a scheme, it should include details of the following:

* What eligibility criteria should apply – for example, length of service requirement, only available to a certain level of staff.
* What length of career break will be allowed.
* Whether you intend the contract of employment to continue during the period of leave (not recommended for long career breaks).
* Whether or not continuous employment will be preserved during the period of absence.
* If you do wish the contract of employment to continue, then consider arrangements re paid leave, pensions, holiday/sickness benefit rights, any other benefits calculated according to length of service.
* How far in advance someone must apply, and to whom an application should be made.
* Clarify the decision making process. You may wish to stipulate that each case must depend on its merits, and agreement is subject to the needs of the business. Other additional criteria may be specified, eg you may wish to specify that the employee must have an satisfactory absence and disciplinary record.
* Any appeals procedure (or use the grievance procedure).
* How to maintain contact with employees on career breaks – any requirements to keep in touch, work for defined periods, attend update sessions.
* How to reintegrate the employee into the business on return from a career break.
* Finally, it would be advisable to include something which states that where the employee obtains alternative employment without the employer’s consent; the employer has the right to terminate the employment break arrangements (and the contract of employment is that is still continuing) without notice.

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