Care is needed when advertising flexible working patterns in job roles
Many of us have heard of catfishing whereby someone deceptively creates a false identity to lure people on a social networking service, usually targeting a specific victim for financial gain. But there’s a new type of fishing making its way into the working world, much less sinister in nature, but taking advantage whether intentionally or not of applicants. For lack of an official term, we’ll refer to it as “flexi-fishing”. This could be when an employer’s job advert or company website presents their job vacancies or work culture as “flexible” when in fact it does not really allow flexible working in practice.
Examples of such instances are being alerted by The Advertising Standards Authority (ASA), which has upheld a complaint brought against an employer’s job advertisements for a home care provider offering “flexible working patterns“, according to law firm Osborne Clarke’s Workforce Solutions team.
In this particular case, clicking on the ad took users to the job listing on the employer’s website. The advertisements stated under the sub-heading “Care Assistant Job Pay & Benefits”- “0 Hours Permanent Contract” and “Flexible Shift Patterns Available”.
Further down the page, text stated, “Flexible shifts – whether you’re looking for a couple of shifts a week in the Evening or Evening care work on the weekends, we can offer you shifts so you can work whenever it suits you”. Zero Hours Justice, whose client was offered the job of care assistant, but was later unable to choose their own shifts, challenged whether the claims of flexible working were misleading in the circumstances, reported Osborne Clarke.
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Why is it wrong to misrepresent flexible working in a job advert?
“Employment marketing communications must not misrepresent living and working conditions, so while the ASA accepted that a degree of latitude might be acceptable when employers used “aspirational” claims to describe their workplace, mission statement or ethics, employers must be able to substantiate objective claims, such as pay or hours, in employment marketing communications,” reported Osborne Clarke.
The law firm explained:
“Here, the ads referred to the flexibility of working patterns; the ASA concluded that applicants would understand those claims to represent a genuine flexible working arrangement, whereby employees could regularly choose their own shifts to suit their lifestyle, which may include not working for several weeks at a time or working different shift patterns each week (one advertisement specifically referred to the advertiser being able to offer shifts so employees could work whenever it suited them).
The ASA considered that this was likely to further the impression that the work would offer a flexible choice of hours on an ongoing basis, particularly in line with the claim that the role offered a “0 Hours Permanent Contract”.
However, in reality, it transpired that the employer required employees to determine a fixed “availability to work” period at the outset of their employment, meaning that employees could not change their shifts on a week-by-week basis and that they were required to always be available during this period, notwithstanding annual leave allowance.
While employees were allowed to refuse work, they were contractually obliged to be available to work on a weekly basis during their fixed “availability to work” period.”
The Osborne Clarke report highlight that this decision underlines the importance of job advertisements accurately reflecting any flexible working patterns on offer and giving careful consideration to the wording used.
Ask more questions about flexible working before you sign a contract
One way to avoid disappointment as an applicant is by asking more questions about flexible working practices before taking a job.
Explain your situation and see if there is a mutually beneficial way of working for both you and the employer or client. This way there are no misunderstandings between both parties and no surprises down the line when it comes to expectations.
Employers can do their part too by thinking carefully about any flexibility promoted to attract employees to the business. With a skills shortage being experienced by many sectors, there is an understandable emphasis on advertising roles in the best way to attract talent, and with flexibility high on many applicants’ lists of requirements, particular emphasis may be placed on this aspect of a role.
“Where flexibility is specifically mentioned, care should be taken to ensure that the role is able to offer what is advertised (for example, specific days of work, an office/home working split, selection of shifts or zero hours commitment),” said Osborne Clarke’s Employment Law Coffee Break report.
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