1.1 Who should read this practice note?
This practice note is designed for partners, human resources professionals and anyone involved with the management of a law firm.
1.2 What is the issue?
Employees have the statutory right to request a flexible working pattern. This practice note offers advice on that right and suggests forms of flexible working that practices may wish to consider.
It also covers the law in relation to indirect discrimination where it affects those with caring responsibilities.
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2 What is flexible working?
Flexible working covers a range of alternative working arrangements that are often more suitable for employees (and employers) than the traditional Monday to Friday, nine-to-five model.
Flexible working can allow employees to:
- change the number of hours of work
- change the times when they are required to work
- work from another location or from home.
2.1 Types of flexible working
Most law firms will be familiar with employees requesting to work fewer days per week or perhaps fewer hours in a given day but there are many more flexible ways of working which may suit your needs and those of the employee:
- Term time working can allow employees to spend school holidays with children. This can be particularly attractive for law firms who may find it easier to manage an employee being out of the office for a block of time at particular periods of the year, especially if those non-working periods coincide with quieter periods.
- Flexi-time means that employees work for a set number of hours but can adapt their hours to suit their needs. Some employers have 'core hours' during which time employees must attend work. This is helpful for firms who need to be certain when employees will be available to meet with clients or to help with completions or other deadline-based work. Other firms allow complete flexibility meaning that there are no 'core hours' and employees can begin later or leave earlier to fit around caring commitments.
- Staggered hours are a form of flexible working where employees begin and end at different times throughout the day. This can be especially helpful with support staff to ensure that lunch breaks are covered and that there is always support earlier and later in the day.
- Compressed hours allow employees to work a core number of hours (often full time hours) in fewer days, such as a nine-day fortnight or a four day week. This can work particularly well with employees who are able to predict what work they have and plan ahead.
- Home-working allows employees to spend all or part of their working week from home. Employers benefit from more dedicated work time due to less time spent on commuting or office distractions, while employees have more time in the day to attend to their caring responsibilities.
- Job sharing allows two (or more) colleagues to share one role. This can be very reassuring to clients who will know that their matters are being handled by no more than two dedicated solicitors. It relies heavily on the colleagues working well together and ensuring a smooth handover on non-working days. It can often work well with support staff, particularly if the job can be split along the respective strengths and interests of those colleagues.
These are just a few examples of forms of flexible working which are commonly in practice. You can decide with the employee what form of flexible working will be most appropriate for the employee and your firm.
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3 Your employees' statutory rights
All employees have the legal right to request flexible working - not just parents and carers. All employers must deal with requests in a 'reasonable manner'.
Examples of handling requests in a reasonable manner include:
- assessing the advantages and disadvantages of the application
- holding a meeting to discuss the request with the employee
- offering an appeal process.
3.1 Your duties as an employer
You must consider carefully statutory requests to work flexibly. As more women enter the profession and the proportion of older people increases, it is likely that more employees will assume caring responsibilities on top of their paid employment.
This is likely to lead to an increased demand for flexible working.
As carers will often be women with caring responsibilities, any practice restricting opportunities for part-time or flexible working may be indirectly discriminatory on grounds of gender.
If an employee has requested flexible working to care for a disabled family member, there is also a risk that you could inadvertently discriminate against that employee under the Disability Discrimination Act on grounds of 'associative disability'.
You should therefore consider any statutory request carefully. See 5.3 Discrimination and constructive dismissal for more details.
3.2 Who can make a request to work flexibly?
To make a request to work flexibly, employees must:
- be employed. Self-employed locums, agency workers or consultants are not entitled to make a request under the statutory regime,
- have 26 weeks' continuous employment when making the application; and
- not have made another formal application to work flexibly during the previous year.
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4 The statutory procedure
The legislation requires employees to make their request in writing. They must set-out:
- The date of the application, the change to working conditions they are seeking and when they would like the change to come into effect.
- What effect they think the requested change would have on the employer and how, in their opinion, any such effect might be dealt with.
- That this is a statutory request and if they have made a previous application for flexible working and the date of that application.
- Whether they are making their request in relation to the Equality Act 2010, for example, as a reasonable adjustment for a disability.
To ensure an employee makes an application correctly, the employer should provide guidance on what information the application must contain.
4.1 When you receive the request
You should arrange to discuss the request with your employee as soon as possible. If there is likely to be a delay in discussing the request it is good practice to inform the employee. The law requires the consideration process must be completed within three months of first receiving the request, including any appeal. If for some reason the request cannot be dealt within three months then you can extend this time limit, provided the employee agrees to the extension.
When considered the changes your employee is requesting you need to weigh up the advantages, possible costs and potential logistical implications of granting the request. You must let the employee know your decision, to:
- accept the request and establish a start date and any other action, or
- confirm a compromise agreed at the discussion, such as a temporary agreement to work flexibly (see the paragraph below) or
- reject the request, setting out clear business reasons, how these apply to the application and any appeal process you permit.
4.2 Accepting the request
If you accept the request, you must write to the employee with:
- a statement of the agreed changes
- a start date for flexible working.
The employee's contract will need to be changed to include the new terms and conditions. This should be done as soon as possible but no later than 28 days after the request was approved.
4.3 Rejecting the request
You must tell the employee that you have rejected the application, and explain what the business reason were for rejecting. You can reject an application for any of the following reasons:
- extra costs that will damage the business
- the work can't be reorganised among other staff
- people can't be recruited to do the work
- flexible working will affect quality and performance
- the business won’t be able to meet customer demand
- there's a lack of work to do during the proposed working times
- the business is planning changes to the workforce.
You should include the key facts about why the business grounds you reference apply. If you make a decision to reject an application based on incorrect facts the employee would have grounds to make a complaint to the Employment Tribunal.
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5 If you reject the request
5.1 Your employees' right to appeal
Employees no longer have a statutory right to an appeal, but offering an appeals process helps to demonstrate that you are handling the request in a 'reasonable manner'.
It is good practice to write to the employee as soon as possible to inform them the outcome of the appeal. If you change your mind, you must inform the employee in writing when the new working pattern will start. If you agree with the original decision, you must give an explanation for this. You can use form FW(E): Flexible working appeal reply (Word, 141Kb) for this.
The decision of the appeal hearer is final.
5.2 If you refuse an appeal
An employee can complain to an Employment Tribunal that there has been a breach of the statutory right to request flexible working (either because the decision was based on incorrect facts or the correct procedure has not been followed). However this is a limited remedy.
An employee cannot complain on the basis that he or she simply disagrees with the business reasons that you have given for the refusal.
The Tribunal cannot challenge your business reasons for refusing a request but can check to make sure that you based your decision on the correct facts.
A claim must be presented to the Tribunal within three months of the procedural breach or within three months of being notified of the appeal decision.
The Tribunal may order the employer to:
- reconsider the application
- pay up to 8 week's pay capped currently at £475pw.
If the employee was not allowed to be accompanied at a meeting or you failed to postpone the meeting to allow a companion to attend, an award may be made of up to a further 2 week's pay at the capped level set out above.
5.3 Discrimination and constructive dismissal
For many, the statutory right to request flexible working is relatively ineffective. Any breach of the legislation is rewarded with minimal compensation and is unlikely to be much of a deterrent to employers who simply do not want to consider any such requests.
However, flexible working requests are often made by:
- women, who still traditionally assume most responsibility for child caring
- women returning from maternity leave, and
- those caring for elderly and/or disabled adults.
As a result, if an employer unreasonably refuses a request it could be exposed to claims of:
- indirect discrimination
- part time worker discrimination
- associative discrimination
- constructive dismissal.
For example, a flexible working request is made by a woman who has returned from maternity leave and who is juggling work and childcare. The law firm where she is employed upholds a rigid nine-to-five work day, and often the hours worked are far in excess of this. The employee's request is therefore refused.
This practice of only allowing full-time work appears to be disadvantaging one section of the workforce more than others, in this case women because it is well evidenced that they tend to have more caring responsibilities.
Employers can justify their approach if they can show that the practice is serving a legitimate aim (for example safeguarding client relationships) but only if that practice (ie. nine-to-five working only) is a proportionate means of achieving that legitimate aim.
In the example given above, it would be doubtful if a blanket rule that all staff must work nine-to-five is a proportionate means of securing client relationships.
In this example, were the employee to complain to a Tribunal of indirect sex discrimination, a Tribunal would scrutinise carefully the reasons behind not granting the flexible working request. It would check whether the employer had considered other ways around the problem of maintaining good client relationships while having a flexible workforce and whether it had considered less draconian alternatives.
5.3.1 If you are found to have discriminated against an employee
If you are found to have discriminated against an employee, the remedy can be substantial and could include:
- loss of earnings (if that employee resigns and claims that they were constructively dismissed due to a breakdown of trust and confidence), and
- injury to feelings for the hurt caused by discrimination of between £500 and £25,000.
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6 More information
6.1 Statutory regulation
6.2 Useful contacts
6.2.1 ACAS (The Advisory, Conciliation and Arbitration Service)
Telephone: 08457 47 47 47
Textphone: 08456 06 16 00
ACAS provides information and advice to employers and individuals on legislation and on industrial relations practices and procedures.
6.2.2 Department for Business, Innovation & Skills (BIS)
Ministerial Correspondence Unit
Department for Business, Innovation & Skills
1 Victoria Street
Telephone: 020 7215 5000
Minicom: 020 7215 6740
Fax: 020 7215 0105
6.2.3 Working Families
1-3 Berry Street
Telephone: 020 7253 7243
Fax: 020 7253 6253
Freephone helpline for low income families: 0800 013 0313
6.2.4 Solicitors Regulation Authority (SRA)
For advice on conduct issues please contact the SRA's professional ethics helpline on 0370 606 2577.
6.2.5 Practice Advice Service
The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 020 7320 5675 from 09:00 to17:00 on weekdays or email firstname.lastname@example.org.
6.2.6 Risk and Compliance Advisory Service
If you require further support, the Risk and Compliance Advisory Service can help. Please contact us on 020 8049 3748, or email email@example.com.
Find out more about the Risk and Compliance Advisory Service
6.3 Other products
6.3.1 Law Society publications
6.3.2 Training and events
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