The right to request flexible working is currently linked to carer responsibilities, including parents of young children, disabled children and adults in need of care. Many clients will have received requests from employees for flexible working before and will therefore be familiar with the current statutory procedure for handling flexible working requests.
Under the new law, the basic right to request is unchanged. Employees can make up to one written request every year and the employer needs to deal with it in a timely.
Part of the motivation for reform appears to be the aging workforce and the abolition of default retirement ages, meaning that the economy will need to start accommodating the needs of older workers! It is also thought that restricting flexibility to groups of parents and carers created a mistaken assumption that flexibility is a ‘perk’ that is good for some but not others.
For those who are not familiar with the principle of flexible working requests, this is simply the right for employees to request changes to their working hours, working times or location and if granted such changes become permanent changes to their terms and conditions of employment. This is often associated with requests to work part-time following return to work after maternity leave, but is certainly not limited to that scenario. Increasingly more men want to take on their share of parental responsibility so if this is their reason for making such a request it is important that employers do not appear less keen to accommodate than if it had been a mother making the request as this could be discriminatory.
The changes which took effect on 30th June 2014 will have the following main implications:
- All employees will have a statutory right to request flexible working for whatever reason. The only eligibility criteria are that they must have 26 weeks’ continuous employment at the date they make the request and must not have made another request within the last 12 months. So forget all the eligibility conditions and preconceptions about who it is for and who ‘deserves it’.
- The strict statutory procedure will be abolished and replaced with a requirement that employers consider flexible working requests in a “reasonable manner”.
The requirement to consider requests in a “reasonable manner” appears at first to be vague and difficult, but ACAS have produced a Code of Practice on Handling in a Reasonable Manner Requests to Work Flexibly and an accompanying Guide, both of which can be accessed on the ACAS website, www.acas.org.uk.
The process outlined in the Code is not statutory but will be taken into account by Employment Tribunals when determining whether or not an employer has dealt with a flexible working request in a reasonable manner and therefore whether or not the employer should pay compensation to the employee as a result of mishandling a flexible working request. Their advice with which we concur is:
- Upon receipt of a written request for flexible working, you should arrange to meet with the employee to discuss the request as soon as possible. Give them the right to be accompanied at the meeting.
- If you intend to approve the request, then a meeting is not necessary but if you need to talk about the exact details it would still be advisable to meet.
- All requests should be considered in a non-discriminatory way and can only be rejected for one or more of eight specified business reasons (which remain unchanged from the previous legislation): burden of additional costs; inability to reorganise work amongst existing staff; inability to recruit additional staff; detrimental impact on quality; detrimental impact on performance; detrimental effect on ability to meet customer demand; insufficient work for the periods the employee proposes to work; a planned structural change to your business. We would recommend that it is advisable to rely on more than one of these reasons when turning down such a request.
- You must inform employees of the decision in writing as soon as possible. If the request is accepted (or accepted with modifications) then you should discuss with them when and how the changes should be implemented.
- If you reject the request you must give the reasons for the rejection in writing and allow the employee the right to appeal. Any appeal meeting should also permit them the right to be accompanied.
- The overall time period from receipt of the request to completion of the process (including any appeal) must be no longer than 3 months, unless an extension has been agreed by the employee.
A tribunal cannot normally investigate the rights and wrongs of the refusal, only whether the procedure has been properly followed. Maximum compensation for a failure to comply is eight weeks’ pay (currently capped at £475 per week).
The change should have little impact on employers who already consider all flexible working requests regardless of the reasons. However, some clients may see an increase in requests and have to decide how to best prioritise them.
It is well to remember our mantra: It is a right to request, not a right to demand and receive
We would, however, advise clients to keep an open mind and focus employees on the requirement that must give an explanation on what effect if any the employee thinks the proposed change will have on the organisation and their suggestions as to how the effect may be dealt with. Talk
Our Consultants would be pleased to advise on any element of the issues arising from this newsletter.
