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The legal considerations to flexible working in 2018 – Shakespeare Martineau
With unemployment at an all-time low and live expectancy rates constantly increasing, employers should not underestimate the impact of the changing demographic of the UK workforce and the changing needs of their employees. A recent YouGov report Work life balance – the tools for retention showed that 25-34s are most unhappy with their work life balance, which has probably led to the increase in demand for flexible working from employees to help people better manage their work-life balance.
Mike Hibbs, employment partner at Shakespeare Martineau explores some of the legal considerations for employers and employees in 2018.
It is often assumed that it is only those with young families who seek such flexibility but in reality, it is also those with caring responsibilities for the elderly and those with disabilities, as well as people who have decided that their lifestyle would better suit a more flexible workplace. This shift in focus for many can mean that money is no longer the only, or even the principle, driver for employees and so require a change in their work-life balance to accommodate this.
The Government has previously supported new forms of support for family challenges such as grandparent leave, however while Brexit conversations continue to dominate it seems unlikely that this will pass into legislation soon. In reality, of course, any employee can have a request for flexible working considered and the statistics continue to show that most applications are granted, albeit with some changes from the original request. While employers can reject an application, for a statutory list of business reasons, there is usually a wish to find a way to help the employee to achieve their aims, if the business can accommodate them.
Increased life expectancy
The other aspect of the demographic position is that those who are being born now have a life expectancy of well over 100. Age discrimination laws prevent an employer from compulsorily retiring their employees and it is inevitable in any case that employees will work longer than they did previously. This will also mean that for most they will not only have more than one job during the lives but many careers and sometimes in tandem.
It is important to remember that employers’ flexibility must not just relate to the terms and conditions they offer but also the career counselling they provide to their employees. Employers have long been advised that annual appraisals or reviews should include a question as to career intentions. This not only helps avoid the risk of age discrimination when trying to find out about retirement intentions beyond normal pensionable age, but it is a practical question to ask because it helps the employer with succession planning and enables employers to move employees between jobs over time. This also helps identify any additional training requirements. Many businesses have recognised that using long serving employees can help new employees, combining fresh ideas with experience.
Meeting customer demands
It is possible to have a flexible business to meet customer demand and yet provide employees with the flexibility they desire. As with many things this is about getting the balance right and in order to do so both the business and those who work for it need to decide what their priorities are and in what order. With careful advice and clear drafting the outcome both parties want can be documented and further disputes minimised or avoided.
Flexible working should not be confused with exploitation which recent cases such as Uber, Pimlico plumbers and Deliveroo might lead people to believe. These cases were addressing how individuals were unable to make a claim against an employer, as they were classed as self-employed, around how they were being treated. However with the ruling favouring the workers there are changes afoot for the gig-economy as a whole but this shouldn’t alter their rights for flexible working.
There will be no let-up in this agenda even if there is a loosening of the labour market because we have already seen many leave the UK as a result of Brexit and more will follow. It may be some time before they are replaced.
An engaged workforce
For employers there are huge positives in having an engaged workforce who are not continually distracted by outside commitments and problems that are able to leave those at the workplace door because they have time and space to resolve them. Many will also be reassured by future intentions to assist them to manage their own careers and to give them appropriate training to higher levels of skill and capacity.
As we continue to be in a nearly full employment economy it is even more important for employers to recognise that employees have a genuine choice as to where and when they work and the terms they accept for doing so.
The future is good for employers who recognise that all these things cannot be taken for granted or left to a one size fits all solution and are prepared to engage with employees, workers and prospective employees.
Huge thanks to Mike Hibbs, employment partner at Shakespeare Martineau for his views on the legal considerations for employers and employees in 2018.
If you would be interested in taking part in a Q&A to share your story on flexibility in the workplace, we would love to hear from you. Contact us at Sarah.Broad@AttuneJobs.com