This only applies to the right to request flexible working, not to receive it. The eight permissible reasons for rejecting a claim have remained the same.
In addition to this significant change the Government abolished the statutory procedure for handling flexible working requests, on the basis that it was too rigid and bureaucratic. This gives greater discretion to employers in how they handle requests. They are now simply required to be able to demonstrate that they have “handled requests in a reasonable manner” rather than having strict guidelines to work within.
Under provisions set out in the Employment Rights Act 1996 and regulations made under it, all employees have a statutory right to ask their employer for flexible working after 26 weeks’ employment. This means a change to their contractual terms and conditions of work. This request could include changes to the employee’s working hours, time and/or location. 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.
Those who have been employed for fewer than 26 weeks (for example agency workers) do not have this statutory right but employers may wish to consider their requests, depending on the circumstances, as a way of bringing benefits to all parties.
An employee is only entitled to make one request for flexible working in any 12month period.
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 underlying principle is that employers should create a culture where employees can be sure that decisions regarding their requests will be handled objectively and fairly and they will not be treated badly because they requested flexible working.
Acas recommends that employers consider putting in place a written policy, setting out how they will handle requests for flexible working. The recommend that this is developed in conjunction with employees (and their representatives, such as trade unions where applicable), as well as legal advisors. A policy should clearly explain:
If you decide not to have a formal policy you should still ensure your employees are made aware of all of this information, so you can demonstrate it, if called upon.
In terms of handling the request Acas sets out a number of recommendations that would be considered “reasonable”:
At this point employers have three options:
The reasons for rejecting a request have not changed. These are:
It is not unlikely that employers will, on occasion, receive more than one request at the same time. Requests should be considered in the order in which they were received and on their own merit. An employer is not required by law to make value judgments about the most deserving case but merely to consider the business case and the impact of refusing or accepting the request.
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 is worth noting (and communicating to employees) that, should they need change for a short period due to bereavement or study this can be done either formally, through the statutory process, or informally, to change back after a short period of time. If this is done through the statutory process employees must be made aware that, should this be approved under the right to request, they do not have a statutory right to request another variation in contract terms for a period of 12 months.
For help with setting in place clear guidelines and policies relating to flexible working contact our Commercial Services team on 0117 9292811. For help with handling disputes on this subject contact James Taylor on 01454 204880.