News

As of Monday 30 June 2014 the right to request flexible working has been extended to all employees with at least 26 weeks’ continuous service.  A number of other amendments have also come into force.

In summary

All employees with at least 26 weeks’ continuous service will now have the right to request flexible working. Previously this only applied to parents and carers.

1. The Government is also abolishing the statutory procedure for handling flexible working requests on the basis that it is too rigid and bureaucratic.  Employers must simply “handle requests in a reasonable manner”.
2. The eight permissible reasons for rejecting an application will remain the same.
3. The right is only to request flexible working, not to receive it.

Further guidance 

• Acas has put together a new statutory Code of Practice. This guides employers on handling a request “in a reasonable manner”.
• They have also published good practice guidance containing information on handling requests.

More detail

Under the new changes all employees have a statutory right to ask for flexible working after 26 weeks’ employment.  Previously this only applied to the parents of children under 17, or, in the case of a disabled child, under 18, as well as those caring for an adult.  An employee is only entitled to make one request for flexible working in any 12month period.  This request could include changes to the employee’s working hours, time and/or location.

The changes that have come into force remove the statutory procedures for how these requests should be handled.  Previously, employers had strict rules as to responding to the various stages and timeframes.  This has been abolished to simplify things.  Now, employers must simply reach a decision within three months and be able to demonstrate, if questioned, that they have acted in a “reasonable manner”.

The Acas Code of Practice (linked above) suggests the following as indications of acting “reasonably”:

• Upon receipt of a request an employer should:
  • Arrange a meeting with the employee as soon as possible after receiving their written request.
  • Discuss the request with the employee to better understand the changes he or she is requesting and how they might be mutually beneficial.
  • Consider the request carefully: looking at the benefit of the requested changes in working conditions for the employee and the business and weighing these against any adverse business impact of implementing the changes.

The reasons for rejecting a request have not changed.  These are:

• the burden of additional costs
• an inability to reorganise work amongst existing staff
• an inability to recruit additional staff
• a detrimental impact on quality
• a detrimental impact on performance
• a detrimental effect on ability to meet customer demand
• insufficient work for the periods the employee proposes to work
• a planned structural change to the business

Once an employer has reached a decision they need to tell the employee, in writing, as soon as possible.  An employee is entitled to appeal the decision and complaints can be made to the employment tribunal about the employer’s handling of this request, if appropriate.  However, it should be noted that unless the employer’s treatment of the employee constitutes unlawful discrimination, the tribunal can only adjudicate on whether the employer followed the procedure “reasonably”, took the claim on the correct facts and seriously and whether its reasons for rejecting the application were “acceptable”.

It seems reasonable to expect an increase in the number of employees requesting flexible working, as a result of these measures.  As a result it’s important that employers have reviewed and amended all existing policies, as well as making sure that management are properly trained and supported to deal with these requests.  Some approaches you may wish to consider, as suggested by Acas, include:

• Developing a clear, written strategy for handling requests. Perhaps this might be done on a first come, first served basis or random draw.
• Employers may want to make any flexible working arrangements they agree to subject to a trial period and annual review. This offers and opportunity to make sure that they’re working for all parties.
• Employers need to take care to consider all requests on their own merit and the potential business impact that they will have. This is particularly important when considering employees who might have a protected characteristic under the Equality Act 2010 (eg. pregnancy, maternity or disability).