The procedure for making and considering flexible working requests has become much less complicated following Government changes which came into effect on 30 June.
This article addresses the main changes:
The statutory right to request flexible working was first introduced in April 2003. Originally it was available only to carers of children under the age of six (or disabled children under the age of 18). It has gradually been extended since then and from April 2014 all employees with at least 26 weeks’ service have been entitled to make a request for flexible working. It is therefore of growing significance in the care sector, where the need for a full compliment of suitable qualified staff, 24 hours a day is particularly acute.
Put simply, there is no automatic right of employees to change their hours of work – the legislation only gives a right for employees to request a change to their working arrangement and an obligation for employers to consider the request.
- The request can cover a change to the hours of work, a change to the times when employees are required to work and a change to the place of work. A request for a temporary change can be made as well as a request for a permanent change. Only one request can be made in any 12 month period. Agency workers don’t have the right to request flexible working.
- The legislation does not allow for trial periods although there is nothing in principle to prevent the employer and the employee agreeing to a trial period. This may be the only way in which the employer can find out whether the proposed arrangements are workable in practice.
- If the employer agrees the request for flexible working then the new work pattern will be incorporated into the employee’s employment contract and will be permanent unless otherwise agreed. The employer is then obliged to issue a statement notifying the employee of the change to their terms and conditions within one month of the change taking effect.
The legislation does not require an employer to give an employee an opportunity to appeal if the request is rejected. However the ACAS Code suggests that employees should be allowed to appeal. A right of appeal may be seen as part of dealing with a request in a reasonable manner.
- Employers should have a flexible working policy to explain to staff how and to whom to make a request, what should be covered, details of who will consider the request and that it can be rejected only for a specified reason. The policy should also explain that employees can be accompanied at meetings to discuss the request, the arrangements for appeals and the time limits for dealing with requests.
- Employees can complain to an Employment Tribunal if, for example the request is not dealt with in a reasonable way or is rejected other than for one of the specified reasons. If the claim is successful, the ET can order the employer to reconsider the request and also order compensation of up to 8 weeks’ pay.
It follows that the financial penalty for breaching the flexible working legislation is modest. However a successful claim can impact on an employer’s reputation with staff and with service users and their families. It might also make it harder to decline such requests in the future. An employee who has had a request for flexible working turned down can potentially claim sex discrimination as well and failure to adhere to the statutory requirements for dealing with such requests could support a discrimination claim.
For all these reasons, it is important that care sector employers should have the right policies in place from the outset which reflect legislative requirements as well as their own, specific operating environment and should also adhere to the legislative requirements when receiving requests.
- The request must be in writing, be dated, state that it is made under the statutory procedure. It must also specify the change which the employee is seeking and when they wish it to take effect, explain what consequences, if any, the employee thinks it will have on the employer and how such consequences could be dealt with. The request must also state whether the employee has made any previous applications and, if so, when.
- An employer who receives such a request must deal with it in a reasonable manner. In particular he must notify the employee of his decision within 3 months or such longer period as the two sides agree. A request can only be refused on one or more specified grounds such as 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 or performance; or planned structural changes.
- There is no requirement for the employer to give an explanation as to why a particular ground applies, although it would be good practice (and would thereby make a resulting claim less likely) to give an explanation.
The law is supplemented by an ACAS statutory Code of Practice and Guide. The ACAS Code suggests that the employer should arrange to talk with the employee as soon as possible. It also recommends that employers should allow employees to be accompanied by a work colleague at any such meetings and at any appeal meetings.