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Flexible working - are you ready?

On 30 June 2014, the rules governing the right to request flexible working will be extended to all employees with at least 26 weeks’ continuous service. On this date, the procedure which employers are currently required to follow on receipt of a flexible working request will be replaced and instead, employers will be required only to consider requests in a 'reasonable manner'.

The current process

The current right to request flexible working is only available to employees who wish to care for children aged 17 or under (or 18 if they are in receipt of disability allowance) or who care for adults in certain circumstances.

Once a request has been made, the first meeting to discuss the request must take place within 28 days and a decision must be made within 14 days of the meeting.

The new process

What is flexible working?

Flexible working can include a request to change the hours, times or place of work. This means that an application for part-time working; full-time working; annualised hours; compressed hours; flexi-time; home-working; job-sharing; self-rostering; shift-working; staggered hours and term-time working could all form part of a flexible working request.

Who is eligible?

From 30 June 2014, employees with at least 26 weeks' continuous employment will be able to make a request for flexible working. These provisions do not apply to self-employed contractors, consultants or agency workers.

How does an employee make a request?

The statutory procedure that employees must follow in making a request remains the same. A request must:

  • Be in writing;
  • Be dated;
  • State that it is an application made under the statutory procedure;
  • Detail the change requested and when that change is to take effect;
  • Specify what impact the employee expects the change to have and how these can be dealt with; and
  • State whether any previous flexible working application has been made and the date of such an application. 

How should an employer deal with a flexible working request?

As of 30 June 2014, employers must deal with requests in a 'reasonable manner' and must notify employees of their decision within three months of receiving the written request (unless an extension of time is agreed).

Acas has produced a draft code and guide which make recommendations in order to enable employers to handle flexible working requests in a 'reasonable manner'. Acas recommends that:

  • An employer should discuss the request with the employee as soon as possible after receiving a written request;
  • In the event that a request is to be rejected, clear business reasons must be provided; and
  • Employees should be informed that they are entitled to be accompanied by a work colleague at any meeting to discuss their request or any appeal meeting.

Although the Acas code and guide are not legally binding, when deciding complaints brought with respect to the statutory scheme, tribunals must take the Acas code into account when it appears relevant.

When can a request be denied?

Employers will still be able to refuse a request for anyone (or more) of the following eight reasons:

  • The burden of additional costs.
  • Detrimental effect on ability to meet customer demand.
  • Inability to reorganise work among 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.

Planned structural changes.

As long as one of the above is satisfied, the request is dealt with in a 'reasonable manner' and the facts used to make the decision are correct, an employer will be entitled to refuse a flexible working request and will be protected from a claim under the flexible working legislation.

Appeals

The new flexible working rules do not make any express provision for employers to allow an employee to appeal a decision to reject their flexible working request. The Acas code does suggest however that an employee should be allowed to appeal the decision. As such, a right of appeal should be included in order to satisfy the 'reasonable manner' requirement.

What does this mean for employers?

It is important to bear in mind that an employee's right to request flexible working is not an automatic right to work flexibly. Employers are within their rights to deny a request provided one or more of the eight legitimate reasons above are satisfied.

Employers will need to consider requests carefully in order to avoid falling foul of complaints or claims of discrimination. Where a request is refused, employers will need to be able to demonstrate that, as well as dealing with a request in a reasonable manner, the decision was a proportionate means of achieving a legitimate aim. In practice, this means that there must be a legitimate business need, for example meeting client demands, and that need must be met in a way which balances the requirements of the employer with the potential discriminatory affect on the employee.

In order to be prepared for the changes, employers should consider taking the following steps:

  • Provide guidance and training to managers on the obligation to consider requests reasonably and to notify the employee within three months;
  • Decide what procedure will be followed in the event of a flexible working application being received and amend any policies and procedures accordingly; and
  • It may be helpful to cross-refer the flexible working policy to any equal opportunities policy or make specific reference to childcare, religious requirements or adjustments required for a disability, in the flexible working policy. 

If you have any questions about this topic, or would like further advice on the new flexible working regime, please don't hesitate to call your usual contact in TLT's Employment team.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2014. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

TLT LLP is a limited liability partnership registered in England & Wales number OC 308658 whose registered office is at One Redcliff Street, Bristol BS1 6TP England. A list of members (all of whom are solicitors or lawyers) can be inspected by visiting the People section of this website. TLT LLP is authorised and regulated by the Solicitors Regulation Authority under number 406297.

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