If small businesses do their homework, the right to request flexible working can be the start of a constructive dialogue with their employees, not a fait accompli

In May, Imelda Walsh, HR director of J Sainsbury, recommended that the right to request flexible working be extended to parents of children under the age of 16, increasing the number eligible by an estimated 4.5 million. If introduced, employers could be inundated with additional requests for flexible employment, which could mean a drastic change for many smaller businesses.

The flexible working law currently enables parents with a child under the age of six years, or a disabled child under the age of 18 years, as well as carers of adults, to make a request for flexible working. In November last year, Walsh was appointed by the government to consider how the right to request flexible working should be extended to the parents of older children.

But although more employees will come within the scope of the right to request, Walsh highlights that "the right to request flexible working is just that: a right to request. It is not as is sometimes portrayed, a right to have flexible working."

Rachel Dineley, employment partner and head of the national diversity and discrimination unit at law firm Beachcroft, says it is important businesses understand this. "Employers have the right to refuse a request for flexible working as long as they can give one of eight valid business reasons for doing so," she says (see list, page 48). "It might not be feasible for a company to accommodate more than a handful of requests if the business depends on particular operating methods, or in a very small business where significant change is asked for," she explains.

But Dineley believes that many smaller businesses don't realise this or, if they do, are worried about the consequences. "Because many businesses think it is risky to refuse a request, many [requests for flexible working] are allowed," she says. "Particularly when a request for flexible working comes from a woman, some businesses worry that if they refuse a request there will be allegations of sexual discrimination." 

If a request is refused it can be challenged, but so far very few cases have been considered by an employment tribunal. According to Dineley, that's probably because most requests are allowed, but also because for the employee it's not worth the time and effort, or a deterioration of the working relationship. "But that could change with the new recom-mendations and a larger population eligible to request it," she adds.

Walsh notes that as more employees are covered by the right to request, she expects that the number of requests that are refused may rise as employers consider the overall impact on their business. But she does not believe the extension will add significantly to business costs-particularly since many employers already offer flexible working to all employees, rather than give parents of young children a benefit that all other employees do not enjoy.

Dineley also believes the effect of the new recommendations on businesses will be limited. "Employers worried about employees having to be at work full time should bear in mind that flexible working means just that. For example, it might mean working eight to four, instead of nine to five, or working from home one day a week. It does not necessarily mean staff will want to work part time, or that everyone who becomes eligible will apply. The number of parents who will actually be able, in economic terms, to take advantage of this new right with a view to reducing their work commitment, is likely to be relatively low," she comments.

Dineley also believes the degree to which businesses will be affected by the recommendations, if introduced, will depend on how much publicity there is to inform workers of their right to make such a request. "It also depends on the boundaries on employees," she says. "For example, this would be a permanent change to the terms and conditions of their employment-they can't turn round in the summer and ask for different hours-this would be an administrative nightmare for the business." In addition, employees have to have been working for their organisation for at least 26 weeks before they have a right to request.

Lin Dickens, managing director of graphic design firm Aricot Vert, has won awards for her firm's flexible and family friendly approach. And yet she admits she was unaware she could refuse a request for flexible working. But the proposals to extend the right to request flexible working won't make any difference to her, as the company's current policy is open to all employees.

"I've always found flexible working to be a very positive thing, that's why we do it," she says. "We can employ people we might otherwise have lost and we have attracted some good people to work for us who might not have come our way. There are hidden costs when you lose staff—such as the loss of intellectual property. Flexible working improves retention, which has an impact on the bottom line."

Dickens also finds that flexible working makes her staff more motivated so they do better jobs and productivity increases. "It is also good for your employer brand, because you have staff who enjoy working for you and then they tell their friends, so you attract other good staff," she says.
Dineley believes the best way to deal with a request for flexible working is to sit down and talk about it with the whole team. "Employers should not be fearful of requests," says Dineley. "It requires maturity of approach and dialogue—not only between employer and employee but also with other colleagues who may be impacted. In some organisations, some team members may fight shy if they feel under pressure to accommodate an employee by an employer."

Dineley advises having a clear policy so that employees can see what their employer can accommodate—and so expectations can be managed. "It's about getting the mechanics right," she says. "An employer who has given it some thought will be ahead of the game. But some employers may not wish to draw attention to the right. But this is the shape of things to come. Those employers that do embrace it may find all sorts of benefits and attract talent that may not otherwise have come their way."

Dickens agrees: "Businesses need to adapt," she says. "It is not just about now. The population is getting older and will need to work for longer. These people will also need to work more flexibly. Businesses need to start doing this now—or risk being left behind."

Did you know?

Section 80(G)(1)(b) of the Employment Rights Act 1996 lists the following eight grounds for refusal of a request for flexible working:

1. Burden of additional costs
2. Detrimental effect on ability to meet customer demand
3. Inability to reorganise work among existing staff
4. Inability to recruit additional staff
5. Detrimental impact on quality
6. Detrimental impact on performance
7. Insufficiency of work during the periods the employee proposes to work
8. Planned structural changes