Changes to Flexible Working
Employment law solicitor Natalie Ruane from Burnetts Solicitors explains changes to flexible working.
From 30th June 2014, in a marked change from previous rules on flexible working, all employees with 26 weeks’ service will have a statutory right to request flexible working arrangements.
Previously, the right to request flexible working was reserved for parents who had children under the age of 17, parents of disabled children under the age of 18 and carers of dependant adults. It is worth noting that agency workers and office holders will still be excluded, as will those who have not worked continuously for 26 weeks, but, from the end of this month, all other employee’s will be able to apply.
What is flexible working?
Flexible working is any change from an employee’s normal pattern of work. Common examples of flexible working include part-time working, flexi-time, job sharing and staggered or compressed hours.
The new right to request and the application process?
The old statutory procedure for considering requests for flexible working will be abolished. From 30th June, that procedure has been replaced with a new duty for employers to deal with an application for flexible working ‘reasonably’ and within a period of three months from receipt of the request.
ACAS have published a Draft Code of Practice and Guide to help employers to deal with requests under the new regime. That guidance can be found by clicking here.
The right to request a flexible working arrangement can still only be used once by the employee every 12 months.
When making a request, the employee must set out, in writing;
- the date of the application and the change of working conditions that he or she is seeking;
- when he or she would like the change to become effective;
- the effect that the request will have on the employer;
- that it is a ‘statutory request’
One important difference from the old regime is that employees will now be able to make requests for temporary changes as well as permanent ones. The employee will just need to specify the period during which he or she would like the flexible pattern to apply.
After the employer has received the request a meeting should be held to discuss the employee’s proposal. The employer should then carefully consider the request, weighing the advantages to the employee against any potential adverse business impact.
Unlike the old regime there are no tight timescales in which to hold a meeting or within which an employer needs to make an initial decision, providing that the process is dealt with within a ‘reasonable time’ and the whole process (including any appeal) is completed within 3 months. If the consideration of the request cannot be completed within three months, the time limit can be extended but only if the employee agrees.
Having made a decision the employer must inform the employee that, either;
- the request has been accepted and the date on which the changes will be implemented;
- a compromise is being proposed; or
- the request has been rejected, setting out the business reasons for that decision (see below).
Business reasons employers can rely on?
The new rules do not change the fact that a flexible working request can only be rejected if the employer can establish that it cannot accommodate the request for one of the eight statutory business reasons. Those reasons are as follows;
- Additional Cost
- Inability to reorganise existing staff
- Inability to recruit additional staff
- The employer considers the change will have a detrimental impact on quality
- The employer considers that the change will have a detrimental effect on customer demand
- Detrimental impact on performance
- Insufficient work during the periods the employee proposes to flexibly work
- Employers planning structural changes that may not fit with the employees request for flexible working
These grounds are still very wide but employers that don’t have evidence to support their decisions will “fall foul” of the new regime in the same way that they did under the old system.
More than One Request
One of the interesting features of the new regime is the acknowledgement that employers may face difficulties if more than one request for flexible working is received at the same time. The Acas guidance suggests that employers in this situation can consider the requests in the order in which the requests are received (meaning that earlier requests might be accepted but later ones rejected) but the guidance also suggests that employers in this position should meet with all of the employees who have made a request (including those who have had requests granted in the past) to discuss whether, with some adjustment or compromise by all of them, all of the requests can be accommodated.
Can employees appeal an employer’s decision?
The simple answer is yes. The new Acas code suggests that employees should be able to discuss a refusal to grant the request if there is additional and new information that the employer did not have at the time of the original decision or if the employee believes the original application was not handled reasonably.
Unlike the old regime, there are no tight timescales for dealing with any appeal. However, importantly, the new rules require that the whole process from start to finish is dealt with within three months.
If an employer is approaching the three month time limit when an appeal comes in, the employer should seek to agree an extension of time with the employee as outlined above.
Effect of the April 2014 changes on employers?
Although it is significant that the right to request flexible working has been extended to every employee with more than 26 week’s service, it is still just a right to request rather than a right to have flexible working and the procedure for dealing with the requests has not changed that much.
Nevertheless, ACAS are suggesting that employers should devise a ‘flexible working policy’ to help ensure consistency in handling requests and to provide transparency for employees. Any employers who would like assistance with drafting such a policy should contact Julie Davis at Burnetts Solicitors on 01768 800855.
Anyone dealing with a flexible working request and who has concerns about the procedure, the implementation of the request or the grounds for refusing the request should contact Natalie Ruane at Burnetts Solicitors on 01228 55 22 22.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.
Published: Friday 20th June 2014