Flexible working: how to negotiate the best deal for you

Flexible working legislation is changing, with the right to request flexible working from day one likely to come into effect next year. Currently those requesting flexible working have to wait 26 weeks. Other changes include an emphasis on consultation to find a solution and on employers looking at alternatives if they can’t accommodate the full request, a shortening of the time employers take to decide a case [down from three to two months] and a doubling in the number of times a person can request flexible working in a year – up from one to two. We asked four employment lawyers for their opinions.

They all anticipate a continued rise in the number of requests for flexible working. Over half [57%] of older workers say they are likely to request flexible working from day one in a new job when flexible working legislation changes, according to a recent pop-up poll by workingwise.co.uk. The lawyers are more divided about some of the other issues. Maria Hoeritzauer, a Partner at Crossland Employment Solicitors, the emphasis on consultation rather than on employees having to make the business case for flexible working is likely to make little difference.  “In practice, most employers already discuss and thereby consult with employees about their requests, particularly if they are concerned about the potential impact of the proposed changes upon the individual, the team and employer,” she says. 

Charlotte Farrell and Tabytha Cunningham at Paris Smith LLP agree in part, but say that employees who work for employers who tend to make decisions without talking to their employees or considering the merits of their request fully, will see their rights strengthened, giving them more grounds on which to challenge an employer’s decision. They add: “It may also encourage individuals to challenge rejections more in the future as well, as there will be a clear ground to challenge it on if the consultation hasn’t taken place.”  

Nikki Sharpe, employment expert at Best Solicitors, thinks that, combined with other aspects of the new legislation, the requirement to consult could make a difference.  She thinks employers may be behind when it comes to understanding the new criteria, which also includes employees being able to make two requests in a year and employers having to respond within two rather than three months as well as considering alternative ways of working if they turn a request down. She says this  could open them up to litigation.  Nevertheless, she says that it is unclear how the legislation will work in practice because it is unclear whether, for instance, the requirement to consider alternative ways of working will be just soft guidance or mandatory. 

All four lawyers agree that it is still important to consider the impact on the business. Hoeritzauer says: “I consider that an employee making a flexible working request should, if possible, provide as much information as possible about the proposed change, including the impact on their work, their team and the organisation. Whilst this may not be required, it does allow the employer to consider the request more fully ahead of any meetings to discuss the request and in turn, to make an informed decision.”

Sharpe agrees, saying that, since the changes have yet to be ratified, employees should still consider the potential impact on the business  and adds that this should make it easier for an employer to approve a request.

Cunningham and Farrell  state: “It is more likely that an employer will accept a request where they can clearly see that the changes are not going to have an impact on the business. It also helps show that the employee is considering how their working pattern could impact on their colleagues, clients/customers or the service they are providing. This can be reassuring for employers and can help build trust between the employee and employer.” 

They add: “Carrying out this review as part of the process could also help the employee when they are putting together their flexible working proposal. It may highlight where there may be pinch points in the week or month which could make their proposed working arrangement tricky and raise issues they may want to take into account when putting forward their proposal. For example, if they are asking for a Friday off each week but there are already three members of a team who do not work on Fridays, then the employee may want to consider whether they need to have the Friday off or whether suggesting a Monday may also work for them personally and be more likely to be accepted due to the team dynamic.”

So how do you make the best possible case for flexible working?

The main thing is to try and put yourself in your employer’s position and to pre-empt any potential difficulties your request might bring and to be honest, for instance, if there are additional costs involved it is important to admit and justify them.

That can involve showing how your work can successfully be carried out under the proposed new working pattern, demonstrating that it will not harm the business and pointing out that it may even have business advantages. For instance, if requesting remote working, it may be that there are parts of a job that can be done more effectively from home without distraction, such as analysis, reading, strategic thinking or writing reports.

For job shares, it is worth putting forward how this might work in terms of handovers, communication with team members or clients and so forth and researching examples of successful job share partnerships. Job shares are still rare enough for many managers not to have come across them so they may need persuading. Demonstrating that you have thought everything through will help.

For part-time work, it is important to think through whether there are certain days or hours which need less cover. Are there certain tasks that could be delegated allowing other staff the chance to act up? If managers are dubious, it might be worth suggesting a trial period, but if you opt for this ensure there is a proper review process.

It is important to methodically think through the tasks a job involves and whether they can be done differently, from a different location, at different times and so forth.

It is also good to have a compromise solution, since the flexible working process is a negotiation. It may be, for instance, that with some homeworking a person who requests part time could work full time or that they could work less at certain less busy times of the year.

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