Since 2002, employees with parental or caring responsibilities have had a statutory right to request flexible working. Currently limited to those employees with children under 17 (or disabled children under 18) and those with responsibilities as carers, the Coalition Agreement in 2010 included a commitment to extend this right to all employees, which was further articulated in the 2011 BIS Consultation on Modern Workplaces:
"Extending this right and encouraging flexible working generally will give all employees the opportunity to contribute more widely to society, whether as carers, disabled people, volunteers, or simply as citizens. It will also help employers to recruit, motivate and retain their workforces, and so build successful businesses as well as increasing productivity."
As a result of this government commitment new employment rules extending this right are now coming into force from June 30th 2014.
A reminder of types of flexible working
Common ways of working flexibly are part-time working, job-sharing or homeworking. However other examples are flexi-time, compressed hours, annualised hours or allowing structured time off in lieu where employees work longer hours during busy periods and take an equivalent amount of time off (with pay) at a less busy time.
What are the new rights?
The new statutory right to request flexible working will:
- extend to all employees with 26 weeks continuous employment;
- remove the procedural requirements for employers’ responses to flexible working requests;
- replace the statutory procedural requirements with a duty for employers to consider the application in a reasonable manner; and
- require employers to notify employees of the decision on the application within a period of three months, unless an extension is agreed between the parties.
What does this mean in practice?
Under these new measures, any employee with 26 weeks’ continuous service can ask their employer for a change to their contractual terms and conditions of employment to work flexibly for any reason, whether to combine work with caring for the grandchildren, taking up a further education course, learning to play golf, or just deciding to spend less time at work. The statutory right remains only for employees, not agency workers or office holders. Nevertheless, the ACAS Guide (see below) notes that employers may still wish to consider a request from these groups as flexible working can bring business benefits as well as benefits to the employee.
What is not changing?
Employees may still only make one written request to work flexibly within a 12 month period. Although there is an extension to the statutory right to request flexible working, there is still no obligation on the employer to agree to the request. They retain the flexibility to refuse requests for one of the business reasons set out in the legislation if granting the request would have an adverse impact on the business. These business reasons are: the burden of additional costs, an inability to reorganise work amongst existing staff, an inability to recruit additional staff, a detrimental impact on quality, a detrimental impact on performance, detrimental effect on ability to meet customer demand, insufficient work for the periods the employee proposes to work or a planned structural change to your business.
How will the process work?
An employee's statutory request to work flexibly must:
- make clear that it is a request for flexible working;
- specify the change which is being requested;
- state the proposed date for the change to come into effect; and
- explain what effect, if any, you think the change would have on [the Company] and how, in your opinion, you think any such effect might be dealt with.
If an employee does not comply with these statutory requirements then such a request falls outside of the legislation. However, if their request is refused, they may also have rights under the Equality Act 2010 e.g. if they could claim that the refusal resulted in direct or indirect discrimination.
The Code’s recommendations are not compulsory, but set out best practice. There is no longer a statutory entitlement hold a meeting with the employee. In any discussions there is no requirement to be accompanied to any meeting, or to appeal a decision although the Guide suggests developing a right to request policy which makes provision for these steps. It would, in many cases seem sensible to retain some type of more formal procedure as an option, although employees could perhaps be directed to use a company's grievance procedure rather than have an appeals process.
An employer may decide to reject a request for a valid business reason, accept the request and establish a start date or confirm a compromise arrangement such as a temporary agreement to work flexibly.
Some tricky issues: other protected rights and considering multiple flexible working requests
An employer may receive more than one request to work flexibly from different employees but during a similar time period. The Guide notes that an employer is not required by law to make value judgments about the most deserving request but consider each case on its merits looking at the business case of each. It may come to a random selection such as drawing names out of a hat (!), or perhaps consider calling for volunteers from flexible working arrangements to change their contracts to allow for new requests to be granted. However organisations should take care when considering competing requests and when reviewing their business reasons not to inadvertently discriminate against particular employees because of their protected characteristics. In addition to the flexible working legislation, employees seeking to work flexibly may well have rights under the Equality Act 2010. Examples include:
- an employee who is making their request in relation to the Equality Act 2010, for example, as a reasonable adjustment for a disability. Employers have a duty to make reasonable adjustments;
- if a male employee asks for flexible working to care for his children. If the employer regularly allows woman to work flexibly for this reason but refuses his request because he is a man, this is likely to be direct sex discrimination;
- considering an employee's rights under part time workers legislation.
The grounds of complaint to an employment tribunal remain essentially the same as prior to 30 June. The employee may complain to a tribunal that the application was refused on a ground that is not a valid business reason, the decision was based on incorrect facts or on a new, additional ground that the employer sought to treat the employee’s flexible working request as withdrawn without having good grounds for doing so. The maximum amount of compensation for a breach of the statutory right to request remains eight weeks’ pay. The Acas flexible working arbitration scheme will also remain available as an alternative to a tribunal claim.
As is already the case, what remains significant is that complaints are more likely to be made, or proceedings brought that the refusal of a flexible working application was discriminatory on other prohibited grounds, such as race, disability, age, sexual orientation or religion or belief for which the any employment tribunal award is uncapped.
Support for flexible working by employers increased during the last recession in order to cut costs and reduce job losses. BIS's 2011 impact assessment estimated that if flexible working requests were opened up to all employees, about 9% of all eligible employees might make requests although the majority of those would still come from those with caring or childcare responsibilities. Ending the complex statutory procedure with its strict time limits for considering and responding to applications should ease the current administrative burden on employers and is to be welcomed.
However these changes do not alter the basic premise that the right is to request a different working pattern, not a right to be granted it. An organisation will still be able to rely on the eight existing business reasons to refuse requests if granting the request will have an adverse impact on the business. Although the idea of altering or reducing working hours may be an attractive personal preference, for those in managerial or professional roles there will linger a concern that such a request could hinder future career aspirations. For others, the economic reality of the current job market may ensure that the idea of raising such a request remains a dream.