Flexible Working

04 August 2014

The new statutory rules governing the right for employees to request flexible working arrangements changed on 30 June 2014.

Historically, in order to make a flexible working request, employees needed 26 weeks’ continuous service and it was a requirement that the request was being made for the purpose of caring for a child under 17 (under 18 if disabled) and that the employee was the parent or guardian of the child or the spouse or partner of the parent/guardian, and that the employee expected to have responsibility for bringing up the child. The right also extended to employees with responsibility to care for an adult. There was a prescriptive statutory procedure within which employers were required to consider the request and respond.

On 30 June 2014, the right to request flexible working arrangements was extended to all employees who have 26 weeks’ continuous service. There is no requirement as to the reason for the request, but employees are only permitted to make one request in any 12 month period.

The statutory procedure has been removed, and replaced with a requirement that employers deal with requests in a “reasonable manner” within a 3 month decision period which starts on receipt of the request. ACAS has issued a draft Code of Practice containing brief guidance for employers on how to handle requests in a reasonable manner. For example, the guidance includes suggestions that employers:

  • Discuss the request with the employee as soon as possible so as to understand the request and the potential benefits which may result
  • Allow the employee to be accompanied to meetings where the request is discussed
  • Ensure the employee understands the implications of the permanent change to his/her terms and conditions of employment.
  • Carefully consider and balance the benefit to the employee with any adverse effects on the employer
  • Provide a written decision

The historic list of statutory reasons upon which the employer may refuse the request remains, in summary:

  • Burden of additional cost
  • Detriment on ability to meet customer demand
  • Inability to re-organise work among existing staff
  • Inability to recruit additional staff
  • Detriment to quality
  • Detriment to performance
  • Insufficient work during proposed periods of work
  • Planned structural changes

While the procedure is now more relaxed, the same risk of discrimination claims still exists. For example, an employer who has a policy/practice of always turning down flexible working requests may risk claims of indirect sex discrimination from women. Alternatively, employers who turn down requests from men but view requests from women more positively may risk direct sex discrimination claims from the men. Failure to properly consider requests from employees to accommodate regular medical appointments may risk disability discrimination claims, depending upon the nature of the medical issues.

Some commentators have spoken of the “flood gates” of requests being opened. However, I have seen little evidence of any flood. Employers should be reassured that they retain a high level of discretion in their consideration of requests. Perhaps, though, this may be a good opportunity to review one’s approach to flexible working and to explore the possibilities, and benefits, which may be presented. Many forward-thinking employers have been offering the right to request flexible working to all employees for years, and
have been reaping the benefits of retaining their top talent.

By Ben Collingwood

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