Problems With Flexible Working



This the article first appeared in the July 2014 issue of Employment Law Journal, published by Legalease. Click here to view the article.


Employers must avoid “dangerous pitfalls” surrounding new employee rights.

Employees with more than 26 weeks of work under their belt now have a right to request flexible working.

Previously, the right applied only to employees with children or certain carer responsibilities.

Employers must deal with the request in a “reasonable manner” but can refuse it if they have a good business reason for doing so. The Department for Business, Innovation and Skills offers examples of a “reasonable manner” as assessing the advantages and disadvantages, holding a meeting with the applicant and offering an appeal process. ACAS has produced a code of practice and guidance for employers.

However, Kathryn Dooks, employment partner at Kemp Little, says complications could arise for employers, particularly when receiving competing requests from the same team.

“Employers can take requests in the order they are received so getting a request in early can impact an employee’s chances of success and the options available subsequently for the rest of the team,” she says.

“If the employer cannot decide between two competing requests, the guidance recommends that the employer can randomly select between the two. These scenarios are likely to cause discrimination complaints and employee relations issues. In addition, under the guidelines, employers are not required to make a value judgement on which is the most deserving request, but if an individual has a protected characteristic (such as a disabled member of staff or a working mother), value judgements are inevitable.

“Avoiding dangerous pitfalls around requests is very important and employers can do so by putting a flexible working policy in place which explains their approach from the outset.”

Meanwhile, employment lawyers have predicted a proposed ban on exclusivity in zero hours contracts may be difficult to enforce.

Luke Blackburn, barrister at 7 Bedford Row, says the contracts could be fair and desirable for some workers if “managed well”.

“But other problems remain with zero-hours contracts: several rights depend on the amount of work actually done. These include holiday pay, and many awards made by employment tribunals.”


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