"Atypical working" describes any work pattern which doesn’t fit the traditional concept of an employee working full-time for a single employer at the employer’s place of work, under a contract of employment of indefinite length.
In recent years there has been a significant increase in the number of people whose working arrangements are "atypical“. Whilst Covid-19 was a significant catalyst, for many organisations the pandemic accelerated a pre-existing trend which has been driven by various factors, including:
- An increase in staff with primary family responsibilities, including the need to care for both young children and elderly relatives;
- The increased cost of higher education which has resulted in larger numbers of students wanting and being available for casual work;
- Technological developments which have facilitated the ability to work remotely; and
- The financial benefits for employers in engaging a more flexible workforce to meet fluctuating demands, as well as the savings that can be derived from the need to provide less workspace.
Atypical working can take various forms, including:
- ‘hybrid’ workers, ‘agile’ workers and ‘homeworkers’ (which terms are often used interchangeably), who split their working time between the workplace and their home;
- ‘part-time’ workers’;
- ‘term-time only’ workers; and
- fixed-term contract employees.
(An individual might adopt more than one form of atypical working, e.g. they might be a part-time agile worker).
Accommodating atypical working requests from staff can have positive benefits, including facilitating recruitment and staff retention by meeting personal needs. However, requests for atypical working must be balanced against the commercial and operational needs of the employer. Furthermore, there are various legal considerations in the context of atypical working:
Is there a contractual right to work atypically?
An atypical working pattern may be expressly provided for in an individual’s employment contract/contract of service, e.g. if they joined the Force on a part-time basis. In the absence of an express contractual right to work atypically, there is also a risk that – on the particular facts of a case – an individual might acquire an implied contractual right to work atypically based upon the work pattern adopted by them over a lengthy period of time. Managers must therefore take care to ensure that a right to work atypically does not arise inadvertently.
Is there a statutory right to work atypically?
There is no specific statutory right to work atypically. However, there is a statutory right to request flexible working. Furthermore, and as explained below, an unreasonable refusal to permit atypical working might, in certain circumstances, give rise to a claim for discrimination.
The right to request flexible working
A police officer or staff member has a right to request flexible working from the start of their service/employment. Flexible working requests by police officers are governed by each Force’s relevant policy whilst requests for flexible working by police staff are also governed by the Employment Rights Act 1996, as amended by the Employment Relations (Flexible Working) Act 2023 and the Flexible Working (Amendment) Regulations 2023. In both cases there is a prescribed procedure that must be followed within a defined timeframe if a request for flexible working is received. Any such request must be considered seriously and can only be rejected on prescribed grounds. Furthermore, proposed changes under the Employment Rights Bill to employees’ right to request flexible working will mean that not only must any rejection of a request be based on one or more of the current prescribed grounds but, in addition, it must be reasonable for the employer to refuse the request. This additional test will allow greater scrutiny of any rejection by an Employment Tribunal, if a complaint is raised by the affected employee.
The impact of equality law on atypical working
If a police officer or staff member is seeking some change in their existing working pattern (either from a ‘typical’ to an ‘atypical’ form of working or between two atypical forms of working) then it’s important for management to understand whether the sought-after change is based upon an equality-related consideration such as child care reasons, religious reasons or the need for atypical working as a disability-related workplace adjustment. If so, then any refusal of the sought-after change might result in a claim for discrimination. Most commonly this will be a claim for indirect discrimination and, in the case of disability, additional claims for discrimination arising from disability and an alleged failure by the employer to fulfil its duty to make reasonable adjustments. With such claims the employer’s liability is likely to depend upon whether it can justify the refusal of the atypical working request. Justification involves a two-part test: there must be a legitimate aim behind the refusal and the decision to reject the request must be a proportionate one, weighing up the needs of the Force as against those of the police officer or staff member.
Other legal considerations with atypical working
If permitting a police officer of staff member to undertake any form of atypical working pattern then the Force will be under its usual duty to ensure the individual’s health & safety. Where an individual is permitted to work from their home for at least part of the time, management need to satisfy themselves that their home workstation is fit for purpose. This will involve carrying out working from home/workstation assessments to identify and rectify any issues so as to ensure compliance with their health and safety obligations.
Management’s health & safety obligations will also include ensuring compliance with the Working Time Regulations.
Two other legal considerations involve cyber security and data protection: permitting employees to work from home/remotely raises additional risks which need to be addressed by employers such as ensuring that appropriate levels of cybersecurity are applied by/adhered to by those working from home and do not expose either the employee’s or the employer’s IT systems, and ensuring that there are clear guidelines around the safe movement of documents (both electronically and physically) between the workplace and home.
As always, organisations are well-advised to adopt and communicate to all staff comprehensive policies which cover the legal and practical aspects of atypical working: this should help manage people’s expectations and ensure that management have due regard to consistent criteria and guidance when considering requests.
If you'd like support on any aspects of atypical working, please contact our expert employment law solicitors.
