magazine
12
From 30 June 2014, following the
government’s Consultation on Modern
Workplaces, the right to request
flexible working will be extended by
the Children and Families Act 2014.
Under the old rules, the right to
request flexible working applied to those
with carer responsibilities, including
parents of young children, disabled
children and adults in need of care. Many
employers will have received requests
from employees for flexible working in
this context and will be familiar with the
statutory procedure for handling flexible
working requests.
For those who are not already
familiar with it, the principle of flexible
working requests is simply the right
for employees to request changes to
their working hours, working times or
location. If granted, such changes become
permanent changes to their terms and
conditions of employment.
Flexible working is often associated
with requests to work part-time
following return to work after maternity
leave, but it is not limited to that
scenario.
The regime in existence prior to the
Children and Families Act 2014 included
a highly prescriptive and much criticised
statutory procedure, which employers
had to follow when handling the request,
including strict timescales for meetings
and appeals.
Changes introduced by the Act on
June 30 2014 have the following main
implications:
1.
All employees 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.
2.
The strict statutory procedure
employed before is abolished and
replaced with a requirement that
employers consider flexible working
requests in a “reasonable manner”.
The right to flexible working has been
greatly extended, which the government
has attempted to balance by introducing
a more flexible employer-friendly process.
Flexible working:
your obligations
A reasonable manner
The requirement to consider requests in
a “reasonable manner” appears at first to
be vague and difficult to follow, but ACAS
has come to the aide of employers by
producing a
Code of Practice on Handling
in a Reasonable Manner Requests to
Work Flexibly
and an accompanying
Guide
, both of which can be accessed at
The process outlined in the
Code
is
not statutory, but its use 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 unreasonable
handling of a flexible working request.
Full details can be found within the
Code
itself, but, in summary, the process
for handling flexible working requests
should be:
1.
Upon receipt of a written request
for flexible working, the employer should
arrange to meet with the employee to
discuss the request as soon as possible.
Employers should give employees the
right to be accompanied at the meeting.
2.
If the employer intends to approve
the request without the need for a
meeting with the employee, then a
meeting is not necessary.
3.
All requests should be considered
in a non-discriminatory way and can
only be rejected for one or more of eight
specific business reasons (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.
4.
Employers must inform employees
of the decision in writing as soon as
possible. If the request is accepted (or
accepted with modifications), then
the employer should discuss with the
employee when and how the changes
should be implemented.
5.
If the employer rejects the request,
they must give their reasons in writing
and allow the employee the right to
appeal. Any appeal meeting should also
permit the employee to be accompanied.
6.
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.
What next?
Any existing written policy or procedure
on flexible working will/will have become
out of date on 30 June 2014. If it has
not been changed by then, you may be
contractually bound to stick to the more
prescriptive timescales and deadlines
contained within it. A complete overhaul
of your flexible working procedure and
any HR templates should therefore be
conducted as soon as possible with a
view to implementing the changes on
30 June 2014.
If you do not already have a written
policy or procedure on flexible working,
then it is recommended that you put
one in place. Employers are required
to advise their employees of how to
make a flexible working request and the
information that must be provided.
To ensure consistency and compliance
with this obligation, information is
best set out within a formal written
policy, which should also outline the
process that will be followed, the right
to be accompanied and the timescales
involved.
A key principle of the ACAS
Guide
concerns attitudes towards flexible
working, with a view to employers
recognising the benefits to their business
in allowing properly managed flexible
working arrangements. However, it
is important to remember that the
legislation does not currently, nor will it
after 30 June 2014, create a right to work
flexibly. Rather, it is a right to have the
request considered.
Nina Robinson explains what new rules
governing the right to request flexible
working mean for employers
Nina Robinson,
Head of Legal
Services,
HR Legal Services.
Many
employers will
have received
requests from
employees
for flexible
working...
