This month has seen the extension of the right to flexible working, alongside important changes to maternity and adoption leave legislation. Shivaji Shiva highlights the changes, and considers some possible implications.
The right to flexible working has been extended this month and many organisations will review their employment policies and procedures in response to the change in the law. This may be an appropriate opportunity for a broader review of the opportunities offered by flexible working practices.
In one sense, flexible working is nothing new to arts organisations. Most artists have experience of freelance working and the ability, in theory, to work as and when they choose. Even when employed, many artists work part-time, with relatively modest rates of pay often compensated for by flexible hours.
Since April 2003, employees with young or disabled children have had the right to apply to work flexibly, although this has had limited practical effect. Many arts organisations have offered flexible working patterns for many years and continue to do so. In addition, employees do not have the right to flexible working arrangements: the right is to make a request. The employer may refuse that request provided that the correct procedure is followed and the refusal is justified by reference to one of a number of specified business grounds. Arts organisations refusing requests for flexible working will often be able to rely on one of the permitted reasons, including the burden of additional costs, or the inability to reorganise the work involved among the existing staff of the organisation. Arts organisations working with tight finances often rely on a small and over-stretched staff team, where staff members may fulfil more than one role. Consequently, it may be difficult to accommodate a request for flexible working and there may be an adequate legal justification for failure.
Accommodating flexibility
However, flexible working arrangements offer benefits as well as costs. The desire for work-life balance is an increasingly common finding from staff surveys and accommodating that desire may help to attract and retain skilled staff.
Common models of flexible working highlighted by employment relations agency ACAS, include:
- Part-time working: for example, an employee might start work later and finish early in order to take care of children after school.
- Flexi-time: employees may be required to work within essential periods but outside core times they often get flexibility in how they work their hours.
- Job-sharing: two employees sharing the work normally done by one employee.
- Working from home: new technology makes remote communication with office and customers much easier.
- Term-time working: an employee on a permanent contract takes paid or unpaid leave during school holidays.
- Staggered hours: employees in the same workplace have different start, finish and break times often as a way of covering longer opening hours.
- Annual hours: this is a system which calculates the hours an employee works over a whole year. The annual hours are usually split into set shifts and reserve shifts which are worked as the demand dictates.
- Compressed working hours: employees work their total agreed hours over fewer working days for example, a five-day working week is compressed into four days.
Organisations should, in any event, implement appropriate procedures to ensure that requests for flexible working are recognised and dealt with in accordance with the procedures required by law. It is also important to ensure that a consistent approach is taken to avoid giving rise to an employment tribunal claim on the grounds that an employee has been discriminated against.
Changing rights
In order to make a request to change his or her working arrangements, an employee must currently have 26 weeks continuous employment at the date the application is made and have a child under six years of age or a disabled child under 18 years of age. With effect from 6 April 2007, the entitlement has been extended so that employees who are carers of adults are also be able to apply for flexible working. Such employees must be or expect to be caring for a spouse, partner, civil partner or relative, or live at the same address as the adult in need of care.
As well as extending the right to apply for flexible working to carers, the Work and Families Act 2006 makes significant changes to the law on maternity rights and adoption leave for employees, particularly female employees whose babies are due on or after 1 April 2007. In summary, these changes include the following:
- Additional Maternity Leave: the qualifying period for Additional Maternity Leave (AML) has been removed. This means that all pregnant employees will qualify for 12 months maternity leave, provided they give the correct notice to their employer.
- Notification of Return from Maternity Leave: if, after giving notice, a female employee changes her mind about the start date or amount of maternity leave to be taken, she must now give at least eight weeks notice of the change to her employer.
- Removal of Small Employer Exemption: small businesses were exempt from a finding of automatic unfair dismissal, where they did not allow an employee returning from AML to the same or a similar job. However, they are now subject to the same requirements as other employers.
- Keeping in Touch Days: these days have been introduced so that employees can agree with their employer to return to work for up to ten days during their statutory maternity leave, without bringing the maternity leave to an end or losing maternity pay.
- Reasonable Contact: employers will now be able to make reasonable contact with employees on maternity leave in order to, for example, keep her informed of important workplace developments.
- Statutory Maternity Pay (SMP), Maternity Allowance and Statutory Adoption Pay (SAP): there is to be an extension of the SMP period, maternity allowance and SAP period, from 26 weeks to 39 weeks for women whose expected week of childbirth, or date of adoption, falls on or after 1 April 2007.
- Adoption Leave and Pay: adopters will be entitled to up to 26 weeks ordinary adoption leave followed immediately by up to 26 weeks additional adoption leave. SAP has also been extended from 26 weeks to 9 months.
- Paternity Leave: it is likely that an extension of paternity leave up to 26 weeks will be introduced by the Government at a later date, alongside the extension of maternity pay to 12 months.
Shivaji Shiva is a partner in the Charity Team at Russell-Cooke Solicitors.
t: 020 8394 6486
e: shivas@russell-cooke.co.uk
w: http://www.russell-cooke.co.uk
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