Tuesday, October 2, 2018
As published in the Sunday Business Post, 30 September 2018.
Flexible working is on the rise, with more individuals requesting it than ever, but employers are under no obligation to comply.
Traditional working patterns – typically the 9 to 5 working day – are fast becoming antiquated in Ireland, as in the rest of the world. To an unprecedented degree flexible working arrangements are being sought by employees and it’s no exaggeration to say that the landscape is changing on a daily basis.
‘Flexible working’ is generally understood to mean any type of working arrangement that differs from the traditional 9 to 5 model. Significantly, flexible working isn’t really governed by specific legislation in Ireland – there’s no “Flexible Workers Act”, or equivalent. Generally speaking, flexible working arrangements (a four-day week, to take a simple example) are a matter for commercial negotiation between employers and employees.
Sometimes these arrangements are contemplated before the employee starts work – there’s nothing to prevent an employer from offering a flexible working pattern from the outset. Alternatively, during the negotiation phase the candidate for a role can agree flexible hours with the prospective employer.
However, for the most part, flexible working requests tend to arise during an existing working relationship – where an employee (because of family commitments, for example) wants to move to flexible working for the first time. What are an employee’s options in these circumstances?
There are different lessons to be learned from countries across the world. In certain jurisdictions (Norway, Australia, Finland, and Sweden for example), certain categories of employee have the right to flexible working hours – if they are the parents of young children or carers. In other countries (France and Germany for example), the right is more limited – it’s confined to a “right to request” flexible working hours.
Ireland is probably on the restrictive end of the scale. With certain (limited) exceptions, employees (irrespective of whether they are parents or not) have no right to flexible working patterns. The Parental Leave Act allows for unpaid leave for parents to spend time with their children but an employer is entitled to insist that the leave is taken in single blocs – which is of little use to an employee who wants to permanently work a four-day week or only work mornings etc.
As of 2018 there are plans to increase the amount of parental leave – but an employee can still be compelled to take their leave in blocs so the legislation, if enacted, won’t have an appreciable effect on flexible working. There’s an option in the legislation allowing employees to take parental leave in considerably smaller increments (hours and days) – but only if the employer agrees.
Parents have other forms of leave available to them – maternity leave of course and, since 2016, paternity leave but, again, these are limited in scope and certainly can’t be considered to be a form of flexible working.
Obviously there’s scope for discord here – if an employee feels aggrieved that an employer won’t entertain what they regard as a perfectly reasonable request for more flexible working patterns, that may lead to workplace disputes.
That said, an employer simply can’t be compelled to accept requests for flexible working and the most likely outcome is that requests will be assessed on a case-by-case basis. Employers may, for example, be more likely to entertain requests from indispensable workers (although employers need to tread carefully and ensure they don’t inadvertently enter the sphere of discrimination).
Given the fact that the Oireachtas is currently examining employment closely (we are likely to shortly see legislative developments in the fields of zero hours contracts, for example) it’s not impossible that legislators will take a look at flexible working too. If that’s the case, it’s a tricky balance.
Employers will not take kindly to proposals – to take one example – that flexible working requests become mandatory in nature, especially if it is proposed that any employee is free to apply.