Flexible Working Arrangements For Fathers Post-Lockdown

The coronavirus pandemic has obviously had a significant impact on working patterns, with many employees having to work from home, changing to work compressed and/or flexible hours to fit around childcare responsibilities and making greater use of remote working technology.

A number of surveys undertaken during lockdown appear to indicate that a large proportion of parents are hoping to see more long lasting changes to flexible working and a move away from the traditional model of employees working set hours within an office environment.

The impact of lockdown on working families – a potential increase in flexible working requests from fathers?

The lockdown restrictions put in place in March had a monumental impact on working families across the country as many parents had never worked from home previously and then found themselves being full-time homeworkers, in some cases, splitting domestic duties, such as childcare, housework and schooling on top of their professional work commitments.

This has led to a change in parenting attitudes and behaviours, which has been evidenced in a number of recent reports, including:

• Research from the Office for National Statistics has shown that the number of hours fathers have spent looking after their children since lockdown started has increased by an average of 58%. As a comparison, in 2015, fathers spent 39% of the time that mothers spent on childcare. During lockdown, this percentage increased to 66%.
• The effect of the lockdown restrictions has led to 65% of fathers stating, via a survey undertaken by Working Families, that they would like to adopt flexible working arrangements going forwards in order to spend more time with their family, and improve their work and home life balance.
• Lockdown also appears to have led to a shift in attitudes towards homeworking and the sharing of housework. A report carried out by Kent and Birmingham University, titled Working from home during the Covid-19 lockdown: Changing Preferences and the Future of Work, has indicated that:

“parents might have established new patterns of gendered care and unpaid work in the home during lockdown which could potentially influence behaviours and wider cultural norms around care and housework in the future.”

In light of these changes in attitudes and behaviours, the Fatherhood Institute has commented that in order for fathers to maintain the same amount of time they are spending on childcare, once lockdown restrictions are lifted, they would need an additional eight hours of free time each, through:

• A reduction in commuting to and from work;
• Working from home more regularly; and
• Decreasing the number of hours in the working week.

The Fatherhood Institute is calling on the Government to encourage fathers to adopt flexible working arrangements (where their employers permit) in order to spend more time on childcare.

Low take up of Shared Parental Leave

When the Shared Parental Leave regulations were introduced in 2014, a key principle was that it allowed fathers to spend more time with their child and would support mothers and their career aspirations, which can often be impacted when mothers take maternity leave.

However, to date, the take up in Shared Parental Leave has been low (only 1% of eligible parents took it in 2019) and doesn’t appear to have had the impact it was set out to have. According to the reports mentioned above, it seems that the natural consequences of lockdown on home life may have had the desired impact that Shared Parental Leave sought for a number of fathers and their families.

If, as anticipated, employers are set to receive a large volume of requests from fathers requesting greater flexibility in terms of the way in which they work, there is an expectation that employers will be more willing to embrace such flexibility and support these requests, particularly in light of the fact that it has been reported that new ways of working adopted during lockdown do not seem to have had too detrimental an effect on employee productivity.

What are flexible working requests?

In order to make a flexible working request, a father/employee needs to have at least 26 weeks’ continuous employment. If they do, they can make a request once every 12 months for flexible working under the statutory flexible working scheme to change their terms and conditions of employment relating to:

• How many hours they work;
• When that work is done; and
• Where that work is done.
  • For example, a father can request to work fewer hours per week, start work later in the day or work from home indefinitely or for a certain number of days each week.

In order for a request to be a valid flexible working request it must contain certain prescribed information, as set out in the Employment Rights Act 1996, including:

• The changes the employee would like to make;
• The date the employee would like those changes to be effective from; and
• The effect the employee thinks the changes could have on their employer and how that could be dealt with in practice.

It is important to note that the legal right is for an employee to make a request to their employer and have that request properly considered, but not to insist that their employer makes the changes requested. An employer may refuse a flexible working request if one or more of the eight prescribed grounds apply, for example:

• Planned structural changes
• The burden of additional costs
• A detrimental impact on quality/performance/ability to meet customer demands
• The inability to recruit additional staff
• A detrimental impact on performance
• The inability to reorganise work among existing staff
• A detrimental effect on ability to meet customer demand
• Lack of work during the periods the employee proposes to work

Whilst the right to make a flexible working request is only available to employees with the requisite service, employees who do not strictly qualify are still able to make an informal request for flexible working.

How should an employer handle a flexible working request?

An employer must notify an employee of its decision in relation to their flexible working request within the ‘decision period’ (including its decision on any appeal against an original decision), which is the period of three months from the date on which the application was made. The date on which the application is deemed to have been made will be reliant on the method the request was delivered by and it is important for businesses to ensure they comply with the rules on this. If an employer does not think it will be possible to deal with and provide such a decision within that time frame, then it is open to the employer to seek the employee’s agreement to a longer time period.

It is therefore vital that an employer considers any flexible working requests from fathers/employees it receives both in a reasonable manner and promptly.

Whilst there is no fixed procedure that must be followed by an employer when considering a request for flexible working, ACAS has issued a Code of Practice on how to handle flexible working requests. Every employer should have regard to this, not least because any Employment Tribunal would have regard to the relevant provisions of this when considering a claim from an employee that their employer did not deal with their request in a reasonable manner. Broadly speaking, an employer should:

• Properly discuss any request with an employee in private and as soon as possible and allow an employee to be accompanied by a colleague at any meeting to discuss their request. This is the case unless an employer simply intends to grant a request without question, in which case a meeting is unlikely to be necessary.
• Consider every request carefully, weighing up the benefits of the request for the employee and the company against any potential adverse effects and ensuring that any decision is not discriminatory.
• Communicate its decision as soon as possible in writing to the employee setting out clearly any grounds for rejection and, if rejected, give an employee the opportunity to appeal that decision.

If, after consideration, an employer is not of the view that the request can be accommodated in its current form, it should also consider whether this could be accepted but with modifications or whether a trial period could be implemented to test the impact of the changes in practice.

Potential employment claims

In addition to claims relating to the way in which a flexible working request was dealt with, employers also need to be alive to the risks of a discrimination claim or dismissal claims associated with such requests. For example, employees may make a request on the basis of their childcare responsibilities or to accommodate a disability or religious observance.

If the refusal of a request is found to be discriminatory, it is also extremely likely that this will be held to be a fundamental breach of an employment contract, which may entitle an employee to resign in response to that breach and claim constructive dismissal. Furthermore, any dismissal of an employee where the principal reason for dismissal is related to the employee making a flexible working request, bringing a claim relating to flexible working or being selected for redundancy on grounds relating to flexible working is likely to be automatically unfair.