Among the wide range of flexible working requests that land on
employers’ desks, it can be particularly challenging to respond
to requests to work compressed hours. We consider the most
frequently asked questions.
In the wake of the coronavirus pandemic, we have continued to
see a tussle between employers wanting a return to the office and
employees wanting to retain flexibility and a greater autonomy over
their working arrangements. As many employers continue to push for
greater office attendance, in some cases employees have responded
with making a formal flexible working request. Many of these
inevitably focus on remote working.
However, we have also spotted a recent trend of more creative
requests. Not only are employees making requests for remote working
and part time working, but the cost-of-living crisis also means
employees are increasingly focused on how they can achieve a better
work life balance, whilst protecting their income. For some,
working compressed hours is the answer.
What is a compressed work week?
A compressed hours arrangement allows employees to work their
full contractual hours over fewer working days. For an employee who
is contracted to work 40 hours a week, Monday to Friday, examples
of a compressed hours working week might include working:
- ten-hours for four days per week (e.g. 8am to 7pm, with an hour
for lunch); - a 9-day fortnight, working their full contracted hours over 9
days in each two-week period (equating to just under 9 working
hours a day); or - an extra hour Monday to Thursday, to allow for an early Friday
finish.
Employees could also work a combination of compressed hours and
part time working. For example, an employee could work one long
10-hour day, and two shorter five-hour days.
These types of working arrangement will appeal to many; the
employee will get to retain their full-time pay and benefits, but
they gain an additional day or afternoon off.
What are the benefits of compressed hours?
The benefits of compressed hour working arrangements are not
just for employees. Benefits for employers include:
- Competitive advantage: Allowing a variety of
flexible working patterns tailored to each individual throughout
their career will give employers a competitive advantage, allowing
them to retain the best talent. For example, allowing such requests
could be a helpful tool in supporting parents returning from a
period of family leave. The right to request flexible working is
now a ‘day 1’ right and allowing an employee to work a
pattern which suits their lifestyle from the outset of employment
may also help attract the best talent. - Operational flexibility: Depending on the
industry and role, in some circumstances compressed hours could
allow the business to extend their operating hours to clients or
for client-facing work to be given greater priority during usual
operating hours. - Improved employee well-being: There is a lot
of evidence around the benefits of a four-day week for both
employers and employees Although a lot of this is based on 4 day working trials focusing on reduced hours
(as opposed to compressed hours) there is still an argument that
working fewer days will generally allow employees to obtain a
better work life balance. In turn, this could prevent burnout and
stress, improving wellbeing and reducing sick days.
Are there any drawbacks?
There are also some down-sides for employers:
- Hard to implement: For some sectors,
compressed hours will be difficult to implement in practice and, in
some businesses, unviable. For example, in hospitality or
manufacturing where a shift rota is operated, employees may already
be working long shifts or deviations from usual shift rosters may
not be logistically possible. - Difficulty determining what is “full
time”: In many industries, employees will regularly
work significantly more than their contractual hours. This is very
common, for example, in professional services. Contracts of
employment in many industries require employees, and particularly
managers, to work additional hours as may be required to fulfil
their role without further remuneration. This is often combined
with the employees signing an opt out of the 48-hour working week.
This is the real nub of the problem for many employers who receive
this type of flexible working request. How can these employers
determine what “full time” hours actually are in
practice? And where an employee habitually works, and is expected
to work, unpaid overtime to fulfil their role, is it feasible or
practical to agree to even longer working days? - Impact on team morale: This type of working
arrangement can cause friction amongst staff. Agreeing to
compressed hours working for one employee could result in them
actually doing fewer hours than they otherwise would have if
working five days a week, whilst also upsetting employees who
regularly work beyond their contractual hours five days a
week. - Too demanding: As a counter argument to the
benefits above, working longer days could actually be a source of
fatigue, stress and, ultimately, burnout. A working pattern which
exceeds the usual hours in a working day can be physically and/or
mentally draining and have a negative impact on wellbeing.
Depending on the nature of the work, there may also be health and
safety concerns (a point which is considered further below).
What do we need to consider if agreeing to a compressed working
arrangement?
If an employer agrees to an arrangement to work compressed
hours, they will need to consider the wider contractual and
practical implications. For example:
- How will holiday be calculated? Most workers are entitled to a
minimum of 5.6. weeks’ annual leave. As holiday entitlement is
calculated with reference to a “week”, for an employee
who works full time hours over fewer days, this will equate to
fewer days of holiday (despite working the same number of hours).
But this does not always translate to a straightforward answer for
how holiday and bank holiday entitlement should be calculated. The
answer will vary depending on the specific working arrangement and
contractual terms. For those that work a pattern with some working
days longer than others, it may be appropriate to calculate
entitlement in hours. This is a tricky area and specialist advice
should be sought. - Are there any health and safety concerns with working longer
hours? For most requests, there is unlikely to be a breach of the
Working Time Regulations. Having said that, if
an employee is working longer days, employers should be mindful
employees still receive:
- A daily uninterrupted rest period of 11 hours; and
- A rest break of 20 minutes if the employee’s working time
is more than 6 hours a day.
In addition, employers have a duty to protect employees’
health and safety and should consider if an employee is generally
receiving regular breaks. In some industries, employers should also
consider carrying out a risk assessment for such working patterns,
particularly if the role involves an element of manual or
monotonous work.
- Is there sufficient work that can be completed outside of
normal operational hours? If so, will the employee still require
supervision and how will this be sought if the rest of the team
won’t be around? - If an employee will be working longer hours than others, will
their attendance be monitored or tracked in any way to ensure they
are completing their hours? - How will the new working arrangements be communicated to the
rest of the team? Could this cause an influx of similar requests?
If so, how will you manage these? The flexible working legislation
does not deal with how to handle competing requests, but in
practice this can be difficult to manage. Transparency and open
communication will be key. Generally speaking, each request should
be considered in the order received and employers should follow the
same procedure for each. Discussions with the impacted employees
will be important, as well as considering possible
compromises.
Before agreeing to a request, employers may want to consider the
use of a trial period. The Acas Code of Practice suggests a trial
period may be appropriate to assess the feasibility of an
arrangement and a trial period will allow both parties to test the
proposed working arrangement before committing to it permanently.
If both parties agree to a trial period, employers should consider
extending the statutory 2-month decision period and ensuring time
is allowed for both the trial and any subsequent appeal. Employers
will need to ensure that any trial period is carefully communicated
and specialist advice should be sought.
Can we say no to a request to work compressed hours?
There are eight statutory reasons an employer can rely on to
reject a flexible working request. These reasons are fairly
wide-ranging, and each request should be considered based on
individual circumstances. However, although many employers can feel
hesitant to agree to such working requests because of the drawbacks
noted above, it may not be easy to shoehorn a genuine business
reason into one of the statutory grounds when refusing a compressed
hours request. Possible statutory grounds to consider are:
- A detrimental impact on performance and/or
quality. There is a risk that working, for example, 4
longer days only could mean an employee will struggle to fulfil all
the requirements of their role. This could include an ability to
realistically be able to meet full-time targets. This may be of
most concern for roles or industries where employees are regularly
required to work above their contracted hours to fulfil their
role.
There may also be an argument that working longer hours will
reduce focus and effectiveness, leading to a detrimental impact on
output. This may be difficult for employers to be able to
establish, particularly if the request only includes one or two
longer working days.
These can be sensitive arguments for employers to run without
any objective evidence. Although an employee cannot insist on a
trial period to test the arrangements, an employer may need to
consider one and justify any decision not to trial the
arrangements. Any trial period would not test any longer-term
implications (such as the likelihood of fatigue or burnout), but it
could allow an employee to show that their requested arrangement
can be well managed. It will be important for employers to properly
consider, investigate and ideally evidence that performance or
quality could be impacted to avoid an employee successfully arguing
a decision was based on incorrect facts (see more about this risk
below).
- An inability to re-organise work among existing
staff. If an employee can only do limited tasks outside of
usual hours this could limit productivity and lead to others in the
team having to take on additional work. Alternatively, as with
other part time requests, a request may result in insufficient
staffing on certain days, such as a need for a certain number of
managers each day. However, this ground will be less relevant to
larger businesses or “stand-alone” roles or for employees
who generally manage their own client base and workload. - A detrimental effect on the ability to meet customer
demand. This can be relevant if a large part of a role
requires client contact during “normal” working hours. An
employer will have even stronger arguments if urgent client support
is often required. - Insufficient work available during the periods the
employee proposes to work. This may be easier to establish
for customer-facing roles. For example, if a sales adviser works on
a helpline, there will likely be little value in them working after
the helpline is closed. Other examples could include creative roles
where collaboration is a core part of the role and the ability to
do this outside of usual hours is limited.
An employer can rely on other reasons for refusal, such as
health and safety concerns, but these will fall outside the
flexible working regime and therefore carry risk (see below).
What process do we need to follow if we receive such a
request?
Although employers are not obliged to accept a request, they do
need to follow a fair process. See our flowchart for the new flexible working
requirements. The revised Acas Code of Practice is clear that
before rejecting any request, employers must consult with the
employee and consider alternative flexible working options, such as
other part time working arrangements.
Changes to the flexible working regime have
reduced the time frame an employer needs to respond to a request
from 3 months to 2 months, including time for any appeal (although
this can be extended with agreement). So employers will need to act
swiftly and in line with their own internal flexible working
policy.
What are the risks of refusing a request or not following any
process?
Employees can bring a number of flexible working claims. For
example, on the basis that the employer:
- failed to deal with an application reasonably;
- rejected an application for a reason other than one of the
statutory grounds; or - based their decision on incorrect facts.
Any claim must usually be brought within 3 months of either the
employee being told of the decision or the statutory decision
period (or any agreed extension) coming to an end.
The flexible working regime arguably lacks real teeth. Financial
liability is relatively low; a maximum of eight weeks’ pay
(which is also subject to the statutory weekly pay cap). However,
there is also the risk of successful discrimination claims
(particularly indirect discrimination claims). For example, if it
can be shown that women are more likely to be disadvantaged by a
policy of not allowing compressed hours working arrangements, an
employer will need to objectively justify any such practice.
Aside from the legal risks, there are obvious employee relations
concerns with rejecting any flexible working request. Rejecting a
request could result in disgruntled and unmotivated employees,
which could lead to grievances or resignations, as well as
impacting team morale.
In light of the concerns highlighted above, employers can be
tempted to have a blanket policy approach to refuse all compressed
hour arrangements. As with any flexible working request, we would
urge employees to consider each request on a case-by-case
basis.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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