Work-Life Balance

The new buzzword giving HR practitioners a headache is "fambition" - which stripped to its core equates to dads wanting to spend more time at home with the children and less time at the office! In seeking to reach this goal men are now starting to exercise their statutory rights and are making more applications for flexible working as provided for in Employment Rights Act 1996 and supporting regulations.

A recent TUC report "Out of Time" highlights this trend. According to the report, in the first two years of the right to request work flexibly was in existence, 10% of male employees approached their employers about changing their working hours. During the same period, 19% of women in work requested flexible working. The report highlights that UK managers looked more favourably on requests submitted by female members of staff. Only 10% of working mothers had their flexible working requests rejected out of hand compared to 14% of men.

There are a number of potential reasons including:-

• a sub-conscious belief that women should be undertaking childcare responsibilities and not men;
• employers are not thinking laterally about how to re-allocate roles and responsibilities.

The trend towards seeking flexible work comes against a back drop of an increased sophistication amongst employees as to how they conduct their working arrangements. Homeworking, coupled with advances in technology, means that having a designated workplace is no longer a key requirement in a number of industries.

The range of family rights open to men is limited. Paternity leave is limited to two weeks must be taken in blocks. Also, it only attracts pay at the rate of £106 per week or 90% of average weekly earnings, whichever is the lower amount. Provisions in the forthcoming Work and Families Bill may slightly improve the situation. The proposal is to give fathers the right to take up to 26 weeks additional paternity leave (some of which could be paid) if the mother returns to work.

However, it is the flexible working legislation which provides fathers with the best opportunity to become involved in family life. The legislation enables fathers with a child under six (or under 18 where the child is disabled) to make a request for flexible working provided that they have worked for their employer continuously for 26 weeks at the date the application is made.

There is a strict criterion to be followed by an employer in coming to a decision to accept or reject an application. Failure to follow the procedure can lead to an Employment Tribunal or ACAS ordering an award for compensation (eights weeks maximum at statutory limit) and that the application is re-considered.

More importantly, failure to agree to a request for flexible working, where a similar request has been granted to a female member of staff, may expose an employer to a claim for sex discrimination. With compensation awards uncapped and Employment Tribunals having the power to make awards for injury for feelings, the level of compensation that could be awarded against an employer could be significant. In extreme circumstances, depending on the way that an employer deals with a request for flexible working, it could also place a male employee in a position whereby they can bring a claim for constructive unfair dismissal.

Obviously, not all employers will be in a position to accommodate flexible working patterns. If rejected, they must be able to justify their position. This will require them to establish a clear business ground for rejection, with a clear explanation as to why the decision was reached. Business grounds include the burden of additional costs; a detrimental effect on ability to meet customer demands; inability to reorganise work amongst existing staff; inability to recruit additional staff; detrimental impact on quality/performance insufficiency of work during the period the employee proposes to work and/or planned structural changes. Employers should ensure that they can justify their business ground and not use any of the above as a convenient tag to evade their responsibilities.

In a more flexible and demanding employment market the employer who can meet the new demands of emerging and developed talent may reap important dividends. Evidence suggests that the issue of men asking for flexible working in the work place is not going to cease. To ensure that these individuals are not lost, an employer may be required to think more laterally than they have done in the past.

Bullet points

• Paternity rights are due to be expanded under the provisions of the Work and Families Bill which may come on to the statute books in 2007.
• Employers are under a duty to deal with all requests for flexible working. Requests for flexible working can be rejected on business grounds.

• To defend any claims under the flexible working legislation, sex discrimination legislation or constructive unfair dismissal claims it is imperative that employers document the procedure that they have followed and clearly explain why a request has been turned down
• Employers will be required to think more innovatively in how they structure their labour force and should consider developing a policy on flexible working which is regularly reviewed.

For more information on this subject or other employment issues, please contact David Gibson on 0191 233 9789.

« Back to 2006 Archives