Legal experts from global HR and employment law firm alliance Ius Laboris consider contrasting approaches to flexible working in the UK, the US and France.
From June 2014, the UK government opened up the right to request flexible working to all employees with at least 26 weeks’ service. The decision was part of a wider initiative to support the creation of a “modern workplace” with the government believing that removing the parental/caring requirement would “move the discussion away from why the employee needs to work flexibly, and onto how flexible working will work for the business”. It also recognises the important role that flexible working has played in retaining people in employment (even if on reduced hours) during the recession.
Although the move to greater flexibility has been broadly supported by trade unions and businesses, it is important not to overlook the fact that this remains only “a right to ask”. The changes to the law bring a welcome simplification of the process for dealing with flexible working requests but there remains significant scope for an employer to refuse a request if it does not believe it will work within its business. As a result, the valuable claims relating to unsuccessful flexible working requests are still likely to be those that are made under the UK discrimination protection (e.g. sex discrimination and disability discrimination) rather than the flexible working laws themselves.
“Flexible working” can mean different things in different parts of the world but the UK has taken a fairly broad approach to the sorts of allowable arrangements. Historically, there was a focus on part-time working but the UK government now lists job-sharing; home working; part-time; compressed hours; flexitime; annualised hours; staggered hours and phased retirement in a non-exhaustive list of possible flexible working arrangements. It is perhaps this range of arrangements which means that, when surveyed, the proportion of UK employers offering some sort of flexible working is very high.
In December 2014, the UK government published its Fourth Work Life Balance Employer Survey including data from 2013. The research shows that 97% of employers surveyed had at least one form of flexible working available. The degree of flexibility was found to increase:
- where there is a union presence in the workplace;
- among the public and third sectors; and
- where there is a higher proportion of women in the workplace.
Interestingly, the same research indicated that employees’ perception of their employer’s workplace flexibility is at a markedly lower level, suggesting that employers may not always actively promote the availability of flexible working. Having said that, a significant majority of flexible working requests in the UK in the relevant period were agreed (79%). It found 61% of requests were agreed without negotiation, the remaining requests being resolved through discussion, compromise or appeal.
However, there remains a significant gender differential in the take-up of flexible working in the UK. In the period surveyed, 75% of flexible working requests were made by women (interestingly, of the requests refused, 75% were requests from men). Equally, the majority of employers surveyed had no male employees working part-time (but only 28% of employers had no female employees working part-time). It will be interesting to see if, and how much, these statistics change now that the parental/caring requirement has been removed from the UK flexible working legislation.
Lucy Lewis, partner at UK law firm Lewis Silkin
Unlike the UK, the United States does not have a comprehensive national programme addressing flexible working arrangements. The absence of a single authority, however, is not a sign of lack of interest – the Alfred P. Sloan Foundation’s Workplace, Work Force, and Working Families Program found that nearly 80% of American workers want more flexibility at work.
Without a uniform approach, two primary considerations drive flexible working arrangements in the United States: business necessity and legal compliance.
- In general, business necessity is the primary factor and employers often use flexible working arrangements (most commonly work from home and adjusted hours) to retain or attract good employees, particularly employees with family obligations.
- However, just as in the UK, legal requirements are often a catalyst for flexible working arrangements. For example, the Americans with Disabilities Act requires employers to “reasonably accommodate” qualified individuals with a disability. Adjusting an employee’s workday or allowing remote work will often fall into this obligation (especially if done on a short-term basis).
Despite the increasing interest in flexible working in the US, there are two cautionary notes for any employer considering such arrangements:
- First, if the employee is not exempt from the Fair Labor Standards Act, tracking the time of an employee working flexibly can be difficult, particularly in a work-from-home arrangement. The Department of Labor has taken a great interest in ensuring that all time worked away from the employer’s facilities is captured and compensated (especially if the employee uses a smartphone or other electronic equipment for work).
- Secondly, each State’s business license requirements need to be consulted prior to establishing a work-at-home arrangement because some State’s may require employees working at home to obtain a business license and pay a tax or fee.
Matthew Gilley, partner at US law firm Ford Harrison
Although France has attracted a reputation for having a rigid labour market, like the UK French law has been offering flexible working arrangements for a long time. Recent laws are intended to promote greater flexibility but (importantly) also recognise that flexible working arrangements work not only for the benefit of the employees, but also to allow employers to better adapt to business change.
In relation to employees, French law recognises the importance of maintaining a good “work/life” balance and (as in the UK) employees have a right to request flexible working. For instance:
- An employee asking for a part-time job must be given a priority right over all part-time jobs available in the company;
- An employee can require flexible hours in the scope of certain types of leave (for example parental leave or of a training leave which can be taken on a part-time basis); and
- As in the UK, employees have a “right to ask” to work from home although an employer is not obliged to agree.
From an employer’s perspective, French law now gives employers a wider degree of freedom in organising working hours. For example,
- Recent laws facilitate the use of short-time work in order to avoid redundancies; and
- It is possible to annualise working hours in order to adapt to periods of high and low activity, and/or to count working time in days over the year (and not in hours over the week) to avoid overtime payment in periods of high activity.
Jean-Baptiste Chavialle, senior associate at French firm Capstan
The approaches taken in the UK, US and France are different but flexible working arrangements are now clearly an established part of working practices in all three countries. This is demonstrated not only by the increased take-up of these arrangements but the regulatory recognition of their existence.
Whilst no one factor has been determinative in establishing flexible working on the landscape of employment relations, it is clear that across all three countries economic factors have played an important role. Traditionally flexible working was seen as a benefit for employees (more commonly women) with care arrangements but the global recession enabled employers to recognise the value in a more flexible workforce.
As a result, whilst there is likely to be continued to growth in flexible working in the UK, US and France, the pace of growth will necessarily slow as those who want to work flexibly are able and encouraged to do so.
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