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workingwise.co.uk outlines your rights when it comes to negotiating flexible working.
Covid has been a big experiment in mass remote and hybrid working. While more employers are now implementing hybrid working policies, legally there have been no greater rights to flexible working as a result of the pandemic. There was a consultation to make flexible working a day one right last year. This was due to form part of the delayed Employment Bill, but this has since been shelved and there is a new, narrower ‘future of work’ review taking place over the summer which will look at “how to build on ‘good’ flexibility in the labour market and gig economy”.
So, what are your legal rights and how can you best negotiate flexible working?
Firstly, it is important to define what is meant by flexible working, given the discussion during the pandemic has mainly been limited to remote or homeworking. Flexible working is much broader than this and includes part-time working [including job shares], annualised hours, term-time working, compressed hours [where you work a full week’s worth of hours in fewer days], shift work, flexi hours [where you start or end your day at different times] and more – indeed anything that is out of the full-time, full-day at a workplace model.
Many people negotiate flexible working on an informal basis with their employer. There are advantages to this, particularly if you want to then tweak your arrangement regularly. But there are also disadvantages in that, if your employer wants to rescind the flexible working, you are on a weaker footing to argue against this and may have to rely on custom and practice arguments if you have been working in this way for some time.
Here we outline the formal route. To be eligible to apply to work flexibly an applicant must:
The application from the individual must be made to the employer in writing by email or letter. The application must include:
The basic steps are:
The employers can refuse a request on eight grounds and will need to be made to the application in writing:
The reason needs to be detailed clearly in the letter. There is no statutory right to appeal against a rejection, but it is advised under the terms of handling a request in a reasonable fashion. Failure to follow the guidelines could lead to a claim – the time limit for bringing a claim to an employment tribunal is three months from the date the employee is notified of the decision on appeal or breach of this procedure. If the claim is successful, the tribunal may order the employer to reconsider the request and award maximum compensation of eight weeks’ pay.
One of the sticking points for those seeking to get their employer to consider their case is the provision under the flexible working legislation that applicants must explain how they think flexible working might affect their employer and how this could be dealt with. The idea behind this is that flexible working should be, as much as possible, a mutually beneficial arrangement.
But how do you make a business case for the way you want to work?
Many applicants struggle with this and the best employers try to engage employees in conversations about what might work best. But for most there is little support for employees over how to make this business case and it can be hard to know what will work best.
The main thing is to try and put yourself in the 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. To do this you may have to sound out colleagues beforehand to ensure they are on side. 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 everything has been thought 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 those opting for should 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.
If agreed, your flexible working becomes part of your permanent contract. Once a request has been submitted, you cannot apply for flexible working again for another year.