Elouisa Crichton (pictured) is an employment law partner at Dentons. Additional input from construction law partners Akin Akinbode and Mark Macaulay, and managing construction practice development lawyer Tracey Summerell
The government recently announced plans to allow workers the right to request a four-day working week, as an extension to existing rights to request flexible working.
“There are eight prescribed business reasons why an employer may refuse a request, which most construction employers would likely feel they could justify”
The proposals assume workers will work (and be paid) for full-time hours (or at least full-time output), compressing the work into four, rather than the standard five, working days.
In the construction industry, whether a compressed week is feasible depends very much on the type of job involved.
Architects and engineers, for instance, could probably perform their roles across four compressed days (and in fact some already do), without any significant disruption.
For those working onsite in manual occupations, a compressed four-day week would likely be more problematic because the role involves being present on the construction site.
But in an industry facing skill and labour shortages, four-day weeks might warrant consideration if the industry wants to attract talent.
How flexible is construction?
In the UK, all employees already have the right to request flexible working. What is changing is the expectation that such requests will be granted.
A 2021 study published by the Royal Institution of Chartered Surveyors reported the largely positive results of flexible-working pilot projects in construction.
Some leading construction companies have also introduced flexible working policies in the past few years.
However, anecdotal evidence suggests flexible working is not widespread in the industry and, generally, construction professionals are sceptical about the feasibility of a four-day week.
There are good reasons for these doubts, not least that the construction industry operates on slim margins and tight timelines, making it highly sensitive to changes affecting its cost structure.
For instance, a single day’s absence from a four-day rather than five-day week has a much greater impact in terms of time lost. And if a project is hampered by weather or other factors, contractors will be reluctant to reduce the number of days available to get the build back on track, or pay the increased overtime associated with compressed days.
Manual construction jobs are also very physically demanding roles, which raises concerns about the wellbeing and safety of staff working longer daily hours.
Many construction projects will have conditions attached to the build, such as restrictions on noise levels between certain times, which would curtail scope for working longer days.
Scheduling overlaps between different contractors and phases of the build would also be more complicated on a four-day working-week basis, especially if not all contractors agreed to the same working patterns.
Are construction companies obliged to offer four-day weeks?
The government has said it will make flexible working the default for all workers, except where it is “not reasonably feasible”.
This may mean that, before rejecting a request, construction employers would need to produce strong evidence to support their decisions.
There are eight prescribed business reasons why an employer may refuse a request, which most construction employers would likely feel they could justify.
These include additional costs; inability to reorganise work among existing staff; detrimental impact on quality; detrimental effect on ability to meet customer demand; inability to recruit additional staff; detrimental impact on performance; insufficiency of work during periods that employees propose to work; and planned structural changes.
Employers have a two-month window to deal with requests and are not obliged to accept them. However, they must consult the employee before refusing.
Ensuring fairness
If construction companies decide to allow more flexibility in working patterns, they must be mindful of maintaining fairness.
This issue arises if more skilled, highly paid jobs lend themselves more easily to flexible working than lower-skilled, more manual occupations – widening gaps between working conditions and potentially leaving construction employers open to tribunal claims.
Flexible working patterns will therefore need to be considered carefully by construction employers, who may receive more requests to adopt new ways of working in future.
