1. DRIVERS FOR WORK-LIFE BALANCE
Much of the pressure for work-life balance policies originates from the changing demographic make-up of our potential workforce, changing social roles, the changing responsibilities of organisations and legislative pressure. Increasing numbers of women in the workforce wishing to combine family and work responsibilities is an obvious driver for what were initially called ‘family-friendly’ polices (Kodz et al. 2002) and which quickly became work-life balance policies. This legacy does cause some problems for the implementation of work-life balance as we discuss later. The ageing population and workforce is another demographic change which has raised the importance of work-life balance for employers. Older employees may wish, or financially need, to remain in work, but work fewer hours or different shift patterns. The government recognises this and in its Opportunity Age strategy (DWP 2005) there is the identified goal of increasing flexibility for older workers so they can combine work with family and other commitments and any health problems.
A recent study by the Royal College of Nursing (RCN) identified the large number of nurses, working very difficult shift patterns, over the age of 50 who were going to retire. Many of these nurses would have been prepared to stay on in work if they had access to shift patterns which allowed them a better work-life balance, or if they could work part time at the same job level. Such is the level of concern that the government has sponsored a drive to improve work-life balance in the NHS (Mahoney 2002). In addition, the fact that people are living longer means that many employees or potential employees have caring responsibilities, not only for children, but also for elderly parents.
In a tight labour market with a shortage of needed skills employers are forced into developing policies which can attract and retain groups of workers who might previously have left the organisation. Lloyds TSB, for example, felt that to attract and retain the workers that they needed, they needed to demonstrate that they were a progressive employer in terms of work-life balance policies. IRS (2002) found that the most popular reasons for employers to introduce work-life balance policies were recruitment and retention, and CIPD (2005) found that retention was the key driver. The importance of this issue is underlined by the fact that the government is encouraging work-life balance, and began a campaign for this in 2000.
A further influence is the need for employers to respond to what is now termed ‘a 24/7 society’. Noon and Blyton (1997) argue that individual working hours are being decoupled from operating hours, and that more flexibility is needed to cover round- the-clock peaks and troughs. They argue that this now applies to a much wider range of business areas than hotels, hospitals and continuous processes operations. Financial services and retail operations are now subject to similar pressures. There is much evidence of work intensification over the past two decades and this faster pace has been associated with much greater levels of stress in organisations. Holbeche and McCartney (2002) found that employees were experiencing anxiety, work overload, loss of control, pressure, long hours and insufficient personal time. Such experiences are likely to encourage a reassessment of values in workers, and there is also evidence that younger people entering the labour market are much less willing to sacrifice their personal lives for total commitment to work. Values and expectations appear to be changing.
Associated with such changes organisations have been facing, and sometimes losing, lawsuits in respect of stress resulting from work. From a legal perspective employers have a duty of care, so in terms of self-protection work-life balance measures have an
attraction. On a more positive note there is some evidence that employers are more concerned about promoting a healthy working environment and are more aware of their social responsibilities as an employer.
In conjunction with David Blunkett, the then Secretary of State for Education and Employment, the Employers for Work-life Balance Alliance was set up in 2000. It comprised 22 employers who exhibited good practice in work-life balance and served to offer advice to other organisations. The alliance has now disbanded but in its place Investors in People has developed a work-life balance model which offers guidance for employers.
2. THE LEGISLATIVE CONTEXT: FAMILY-FRIENDLY LAW
In recent years a significant contribution to the development of workplaces which offer a better work-life balance has been made by the government and by EU institutions. This has involved the introduction of new regulations which require employers to take account of the needs of people with family responsibilities as well as substantial improvements to existing statutory rights. Campaigners pressing for greater family- friendly working practices would like to see a much further extension of this kind of legal right, and this may well happen over time. For now though the government has chosen to take an incremental rather than a radical approach to policy development in this area, taking care to balance the interests of employees and employers. The major ways in which the law plays a part in promoting family-friendly working practices are set out in the following paragraphs. The Working Time Regulations 1998, which are also often reviewed in this context, were discussed in Chapter 22.
2.1. Ante-natal care
A well-established statute gives pregnant employees the right to take reasonable time off work to attend medical appointments connected with a pregnancy without losing any pay. The right is expressed as follows:
not to be unreasonably refused time off for the purposes of attending ante-natal care appointments.
This means that permission must be sought and gained before the leave is taken. There is no general right simply to leave the employers’ premises and then later state that this was for the purposes of attending ante-natal care appointments. If an employer unreasonably refuses a request, a claim can be taken to an employment tribunal. In many cases the employer’s action will constitute sex discrimination and will lead to compensation being awarded. More common are situations in which the time off is agreed to, but not on a paid basis, or in which employers insist that any ‘lost’ time is made up at a later date. In such cases the tribunals make an award equal to any salary that has been lost. A common situation in which an employer can reasonably refuse a request is where the woman concerned works on a part-time basis and could arrange her appointment at a time when she is not working.
2.2. Maternity leave
The right for a mother to take time off before, during and after her baby is born has applied for many years, but the UK’s regulatory regime was altered significantly in 2000 and rights were extended further in 2003 and 2007. The aims were both to increase the amount of time a woman could take off work for maternity reasons, and to simplify administrative requirements.
The scheme specifies three different types of maternity leave:
- ordinary maternity leave (OML);
- compulsory maternity leave (CML);
- additional maternity leave (AML).
OML applies to all workers but there is no qualifying period of service. It can last for up to 26 weeks (i.e. six months) and can start at any time within 11 weeks of the date that the baby is expected to be born. Unlike the old scheme, no information needs to be supplied to the employer in writing, nor are any statements of intentions about taking further leave or returning to work required. The woman must, however, inform her employer of the week in which she expects to have her baby and give three weeks’ notice of her intention to take the leave. OML normally begins on the intended date (i.e. on the date the employee informed the employer that it would start), but it starts automatically at an earlier time if the baby arrives early or if the woman is absent for a pregnancy- related reason in the four weeks prior to the expected date of birth.
During OML the contract of employment continues in all respects except for pay. The woman is entitled to retain any contractual benefits such as company cars, portable computers and mobile phones, and her holidays continue to accrue. Any health insurance provided by the employer is retained and all the general duties owed by employers to employees and vice versa continue (see Chapter 6). Moreover, there is a general right for the woman to return to the same job on the same terms and conditions following OML. All pay rises and other improvements to terms and conditions must be honoured so that after her return to work the contractual situation is as if the maternity leave had not occurred. The only exception is where the job becomes redundant during OML, in which case the right is to return to a suitable alternative job with similar terms and conditions. It is important to remember that the right is to return to the same job and not necessarily to the same work. It may be that changes have been made in her absence that mean the detailed work the woman does on her return may be somewhat different.
CML is straightforward. It is simply the two weeks after the birth, during which there is now a compulsory period of maternity leave. The onus is on the employer to make sure that no work is done during this period. Except in the case of very premature births, CML and OML overlap, so CML only applies where a woman decides she does not wish to exercise her right to OML.
AML can only be taken by employees. It runs for a further 26 weeks following on from the end of OML, giving women in this position the right to take a full year of leave following a birth. However, the contractual position during OML and AML is wholly different. Unless the contract of employment states otherwise, terms and conditions of employment do not remain in place during AML. The only exceptions are notice provisions (on either side), redundancy compensation, the right to disciplinary and grievance procedures and the basic duty of trust and confidence. In other respects the contract of employment is suspended during this time. Annual leave continues to accrue but only to the four weeks required by the Working Time Regulations. The right to return after AML is to the same job if reasonably practicable. Otherwise it is to a suitable job on no less favourable terms and conditions.
Whether a woman just takes OML or exercises her right to take AML, she is entitled to return to work before the full period of leave elapses, but to exercise this right she must give eight weeks’ notice to her employer. There is no longer any requirement to inform the employer in writing of a return to work after 26 weeks (or 52 weeks in the case of AML). The assumption must be that the woman will return at this time.
2.3. Maternity pay
Public sector employers as well as many larger companies continue to pay their employees during maternity leave, but this is not a legal requirement. Regulations specify only that Statutory Maternity Pay (SMP) is paid through the payroll to all those who are entitled to receive it. SMP is payable for 39 weeks for employees who have completed 26 weeks’ service with their employers at the fifteenth week prior to the week that the baby is due, and who earn more than the lower earnings limit for national insurance purposes (£84 a week in 2007). Women who do not qualify for SMP have to claim state maternity allowance from the Benefits Agency from the start of their leave.
SMP is paid at the ‘higher rate’ for the first six weeks (90 per cent of salary) and thereafter at the ‘lower rate’ (£108.85 per week in 2007). Employers can claim a portion of their SMP payments back from the government through reduced future national insurance contributions.
2.4. Parental, paternity and adoption leave
European law gives both parents of a child the right to take up to 13 weeks’ unpaid leave during the first five years of the child’s life or during the five years following the adoption of a child. If the child is disabled, 18 weeks may be taken during the first 18 years of the child’s life. In the UK this right currently only extends to employees who have completed a year’s continuous service with their employer. It is only available to parents who have caring responsibilities for the child and the leave must be for the purpose of caring for that child. Interestingly, in this area of law, multiple births give multiple rights. So parents of triplets are entitled to take 39 weeks’ leave.
As with the Working Time Regulations (see Chapter 22), employers may if they wish enter into a formal workplace agreement with their employees setting out how the principles of the law are to be applied locally. In the absence of such an agreement, a statutory default scheme applies which sets out how parental leave schemes should operate in practice. Included are clauses which restrict parents to a maximum of four weeks’ parental leave per calender year and which give a ‘right to return’ equivalent to that for additional maternity leave (AML).
In addition to the right to take unpaid parental leave, since April 2003 UK law has given fathers of new babies the right to take two weeks’ paid paternity leave within the first 56 days of the birth. However, this only applies to employees who have been employed for six months, 14 weeks before the expected date of the birth. As with parental leave, only fathers who expect to have responsibility for the child’s upbringing are eligible. Paternity leave is paid at the same rate as the lower rate of statutory maternity pay (SMP), while return-to-work arrangements and contractual entitlements are the same as those for ordinary maternity leave (OML). Here though, multiple births do not give multiple rights.
When parents adopt a child, only one is entitled to take full adoption leave on the same basis as the maternity leave scheme outlined above, with pay during the first six months. The other is then entitled to take unpaid parental leave and two weeks’ paid adoption leave. The payment arrangements rules about entitlement, notification procedures and contractual entitlements are as for maternity and paternity leave respectively.
2.5. Time off for dependants
Further European law gives workers a right to take reasonable amounts of time off during working hours for urgent family reasons, employers being informed of the intention to take the leave ‘as soon as is reasonably practicable’. The UK legislation which gives effect to the relevant directive dates from 2000. It specifies the following situations in which such leave can be taken:
- to provide assistance when a dependant falls ill, gives birth or is injured;
- to make arrangements for the provision of care for a dependant who is ill or injured;
- on the death of a dependant;
- due to unexpected disruption or termination of the arrangements for the care of a dependant;
- to deal with an incident involving a child during the time when an educational establishment has care of that child.
‘Dependants’ are defined as spouses, children, parents or people who live in the same household as the worker, but they only become ‘dependants’ once they rely on the worker for assistance when ill, either directly or through arrangements made with a third party. Tenants, lodgers and employees are specifically excluded. The term ‘reasonable’ is not defined in the Act, but guidance issued by the Department of Trade and Industry (DTI) suggests that it should not normally be more than two days (i.e. enough time to deal with an immediate crisis and arrange longer-term care). This law does not therefore give a parent the right to take weeks of time off to care for a child during the whole duration of an illness. As with ante-natal care, the right is not to have a reasonable request turned down, and over time the courts will have to determine what is and what is not reasonable. What, for example, should happen if the employer knows that a mother’s husband is unemployed and available to care for a sick child?
2.6. The right to request flexible working
A significant family-friendly measure is the right to request flexible working. It goes some way to meeting the demands of campaigners that parents with child-rearing or caring responsibilities should be able to work part time as a right, but it falls short of this position by some margin. The right is for parents of young children and people with caring responsibilities for infirm adults to request any form of flexible working, but it is likely to be used principally by women returning from maternity leave who would like to cut or alter their hours.
The regulations set out a procedure which requires the parent or carer to write formally to their employer asking for a one-off change in terms and conditions, together with an explanation as to how the request could be accommodated in practice. The employer can turn the request down, but only if one of the following eight reasons applies:
- burden of additional costs;
- detrimental effect on ability to meet customer demand;
- inability to reorganise work among existing staff;
- inability to recruit additional staff;
- detrimental impact on quality;
- detrimental impact on performance;
- insufficiency of work during the periods the employee proposes to work;
- planned structural changes.
When a request is turned down, the employee has a right to make a formal appeal, but if this is unsuccessful must wait for a further year before being allowed to make another request to work flexibly. The grounds on which complaints can be made to an employment tribunal are narrow because the right is only to make a request to work flexibly. According to the regulations tribunals are not invited to give consideration as to whether the refusal was itself justified on business grounds or not. However, this situation has effectively changed as a result of the ruling in the case of Hardys & Hansons PLC v. Lax (2005) – at least as far as requests made by women are concerned. Here the regulations were used in tandem with sex discrimination law to bring about a situation in which employers’ reasons are subject to scrutiny by tribunals. Mrs Lax won her case. Her request to return to work following maternity leave on a job-share basis had been turned down, despite such an arrangement being possible. The employers’ objections had been ‘greatly exaggerated’.
2.7. Debates about family-friendly legislation
Views are divided about how, and indeed whether, further extensions of the family- friendly rights outlined above would be justified. Some mooted changes are uncontroversial, such as allowing a couple to choose whether it is the mother or the father who exercises the right to take additional maternity leave (AML), but others are strongly resisted by employers’ associations. These include paying women at the higher rate of SMP throughout ordinary maternity leave (OML), giving employees returning from maternity leave a legal right to work part time and requiring larger employers to provide access to creche facilities. Many employers argue that such measures would unacceptably add to their costs and make them less competitive internationally. There is also evidence of growing discontent about such measures from employees who do not have families, and a fear that too much regulation of this kind actually serves to hinder rather than help women’s employment prospects by acting as a ‘disincentive to hiring women of prime child-bearing age’ (Lea 2001, p. 57).
However, strong public policy arguments can also be put in favour of family-friendly legislation and these hold sway in current government circles. In short, it is believed that such measures are needed to provide gateways which allow parents (particularly mothers) to combine working with their family responsibilities and hence to put much needed skills and experience at the disposal of the economy. They also serve to encourage single mothers and those with unemployed partners to come off welfare benefits and to take up paid employment instead. Helping fathers to take a greater share of domestic responsibilities contributes to this aim as much as removing the barriers which discourage mothers from returning to work following a pregnancy. In a tight labour market, where skills shortages are common, a compelling case can thus be made for family- friendly regulation on purely economic grounds (see Collins 2002, pp. 454-5).
2. WORK-LIFE BALANCE PRACTICES
Work-life balance options focus on three different types of work flexibility. First, there is flexibility in terms of the number of hours worked; second, the exact timing of those hours; and, third, the location at which the work is carried out. Clearly some options may reflect all three types of flexibility. While the legislation only addresses the need of parents and other carers, there is a strong lobby for flexible work options to be potentially available for all employees. There are many possible work-life balance options, and clearly not all of these options are appropriate for all jobs or employees, and employers will need to be convinced of the business benefits of any work-life balance option. In addition work-life balance will mean different things to different people, depending on their age, life circumstances, values, interests, personality and so on. At present flexible options are predominantly taken by women (IRS 2002). Part-time working remains the most available and most popular (see, for example, CIPD 2005; Kersley et al. 2006), and is now so common that it is often not recognised as a flexible approach. In our own research in a variety of functions in the health service (Hall and Atkinson 2006) we found that part-time work was rarely identified as flexible work to achieve work-life balance, even though it was very much in evidence, and informal approaches to work flexibility such as unplanned time off and individual agreements about start and finish times were the most commonly mentioned and used. Table 31.1 lists the main options.
Some items on this list are self-evident, but others require an explanation. While flexitime has been used for some time the systems tended to be formal, with limits, and there is currently an emphasis on less formal approaches and a more ad hoc approach to flexible hours, with, for example, days off for urgent domestic issues and time made up later. Compressed hours allow an employee to work perhaps a nine-day fortnight by working a little extra each day to allow for one whole day off. Self-rostering has been used particularly in the health service and allows nursing teams to design shift patterns and staffing around the demands of work (for example getting the right mix of skills on each shift and taking account of patient care needs) and their own needs. IDS (2000) has produced a useful volume containing case studies of six organisations explaining how each has implemented work-life balance.
Glynn et al. (2002) suggest that in fixed-hours cultures, such as a supermarket, work- life balance policies which detail specific options for flexibility will help. In a long-hours culture, like consultancy work, they argue that it is harder to achieve work-life balance, and a more viable option is to allow individuals more informal discretion to work their hours at the times and in the location that best suit business and personal needs.
There is some evidence that the public sector makes much better provision for work- life balance (see, for example, Murphy 2006) and Walton and Gaskell (2001) give some excellent examples of senior public sector employees working in a variety of flexible ways. Case 31.1 on this book’s companion website, www.pearsoned.co.uk/torrington, focuses on the public sector.
Source: Torrington Derek, Hall Laura, Taylor Stephen (2008), Human Resource Management, Ft Pr; 7th edition.