In the recent General Election, the Labour Party introduced the idea of moving to a four-day week in order to promote employee wellbeing. The proposal was to move to a 32 hour week, with no loss of pay, within 10 years. There is also speculation that Finland will implementing a four-day week in the near future, with working days capped at six hours.
Of course, the proposals for the UK are currently not proceeding given the outcome of the General Election, but it is interesting to think about flexible working and requests for a four-day week.
If an employee has at least 26 weeks’ service with you, and has not made a similar request in the last 12 months, that individual can request flexible working. This might include a change in time of work, hours of work, work pattern or place of work.
If you receive such a request, you must give it fair and timely consideration, as shown in the recent case of McBride v Capita Customer Management Ltd .
In this case, the employee returned to work after a period of maternity leave and a career break. She asked if she could work part-time hours so that she could care for her children, one of whom had health problems. She was told that her job could not be completed on a part-time basis, but that she could job share with someone else who was returning from maternity leave.
The job share started, but it soon changed in practice as the two employees were given separate projects and were, in effect, working two separate part-time jobs. There was then a departmental restructuring, and the employees were told that it was not possible to operate the jobs on a part-time basis, and that the jobs would become full-time. After a series of meetings and discussions, both employees were made redundant.
McBride was successful in her claim of unfair dismissal and indirect sex discrimination. It was found that there was insufficient consideration given to whether the jobs could be part-time, and that meant they were more difficult for employees with caring responsibilities (which, in current society, is still more likely to be women). It was also found that the jobs were not really redundant, because the changes to the role did not meet the definition of redundancy.
This case is a useful reminder of the importance of managing a request for flexible working fairly.
The key points you need to remember are:
You must consider the request and respond within three months.
Once a request has been granted, it is a permanent change of contract, unless you have agreed that the change will be for a limited period of time. Therefore, the employee has no right to insist that s/he changes back to the original working pattern at some point in the future.
An Employment Tribunal will not ‘second guess’ whether you were right to refuse the request. They will simply consider whether you acted fairly, and whether you gave careful consideration to the request.
There are a limited number of grounds on which you can refuse a request to work flexibly. They are:
The burden of additional costs.
Detrimental effects on ability to meet customer demand.
Inability to re-organise 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.
Planned structural changes.
The grounds for refusing a flexible working request should always be clearly explained in detail to the employee, and confirmed in writing. This will help you to prevent (and defend) any potential future Employment Tribunal claims by the employee.
If you would like any further information on the issues raised in this blog please contact Victoria Jackson, Senior Associate at Clarion.
Clarion are teaming up with Connect Yorkshire on Thursday 13th February for a Mental Health and Wellbeing panel event, where we will discuss issues such as:
Mental Health & Wellbeing
4 day working week
If you are interested in attending please visit the event page.
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