Important changes to the law on the right to request flexible working come in to force on 30th June 2014. Is your business ready?

What is “flexible working”?
Flexible working is a term used to describe any working arrangement that is outside an employee’s normal pattern of work.

A request for flexible working can include a request to change the days or hours worked, the times of work, or even the place of work (such as a request to work from home).

What has changed?
Prior to 30th June 2014, only employees with children under 17 (or disabled children under 18) and those who were carers had the right to request flexible working. However, the Children and Families Act 2014 has greatly extended this right and now any employee with 26 weeks’ continuous service can make an application to work flexibly, for any reason. This is likely to cause an increase in the number of employees making requests and employers should therefore ensure that they are fully up to speed with the new provisions.
However, it is not all doom and gloom for employers, as they will gain some flexibility too. The new law dispenses with the previously onerous statutory procedure for consideration of flexible working requests, and instead replaces it with a slightly relaxed duty on employers to deal with requests in a ‘reasonable manner’. ACAS have published a new code and detailed guidance regarding what this should involve in practice (www.acas.org.uk). In summary this includes meeting with the employee to discuss the request as soon as possible, considering the request carefully by weighing the benefits against any adverse business impact of implementing the change and informing the employee of the outcome in writing (including details of reasons for refusal if applicable). Whilst it is no longer a requirement in law, ACAS also suggests that it is good practice to allow the employee to be accompanied at any meeting by a work colleague or Trade Union representative and also for the employee to be given the opportunity to appeal the outcome.

Key points employers need to be aware of
– Any employee with 26 weeks’ continuous service has the right to request flexible working;
– An employee can only make one request in any 12 month period (starting from the date on which they make their request);
– An employee’s application for flexible working must:-

be in writing;
be dated;
state it is an application under the statutory procedure;
specify the change they are seeking and when they wish this to take effect;
explain what effect if any, they think the change would have on the employer and how any such effect should be dealt with;
state whether they have made any requests previously.
– The employee must be advised of the decision within 3 months of the request being made (or such longer period as may be agreed).When can an employer refuse a request?

When can an employer refuse a request?
The legislation does not give employees the right to work flexibly, just the right to make a request to do so. An employer can therefore refuse a request from an employee on any of the following 8 grounds:-

the burden of additional costs;
detrimental effect on the ability to meet customer demand;
inability to re-organise work amongst existing staff;
inability to recruit additional staff;
detrimental impact on quality;
detrimental impact on performance;
insufficiency of work during the periods the employee proposes to work; or
planned structural changes.
An employer can also refuse a request if the application does not include the requisite information, as set out above.
Given the broad nature of these grounds, it is likely to be relatively easy for employers to justify a refusal of requests in most circumstances.

Avoiding discrimination
In considering requests, an employer must be careful not to inadvertently discriminate against particular employees because of their protected characteristics, such as age, sex, disability…etc.
For example, a flexible working arrangement for a disabled employee could amount to a reasonable adjustment, and a failure to implement this could therefore be discriminatory.

Consequences of breach
Provided the decision to refuse a request is not discriminatory and is for one of the reasons set out above, an Employment Tribunal cannot question the commercial rationale or business reasons behind the employer’s decision.
However, if an employer has not acted in a “reasonable manner” in considering the request, and the employee submits a claim, then an employer could be liable to pay compensation up to a maximum of 8 weeks pay (subject to the statutory limit on a week’s pay, which is currently £464).
Compensation for discrimination is uncapped.

Conclusion
It remains to be seen exactly how much of an increase there will be in requests for flexible working following the changes, but employees with children or employee carers may now be in competition with employees looking for flexibility at work for other reasons, such as to study, to volunteer, or simply to make time for hobbies..etc. The changes are aimed at re-addressing the work-life balance and employers will need to recognise that accommodating, or at least properly considering, flexible working requests is becoming a common feature of managing a workforce.
If employers do not currently have a flexible working policy in place, now might be the time to consider implementing one. Any existing policies should be reviewed and updated accordingly. Managers should also be trained as to how to deal with requests for flexible working properly, in order to avoid potential litigation.

For further information or advice on flexible working, or any other employment matter, please contact our Employment Team on 0845 263 7505.

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