Braced for Monday? D-Day on the new Flexible Working rules has finally arrived, and with it, some new questions for employers.
Whether or not you expect waves of new flexible working applicants storming up your company’s beaches first thing on Monday morning may depend on the nature of your business. A CIPD survey in 2012 indicated that a substantial majority of employers were already happy to consider flexible working requests from outside the population of those strictly entitled to make them. However, those previously afraid to ask for flexible working for fear of some sort of retaliation can now do so covered by a legal protection against detriment for seeking to exercise that right. We might consequently expect an increase in flexible working requests, like pre-emptive whistleblowing, shortly before an anticipated redundancy or performance management exercises.
However, one of the more concerning aspects of the new regime is hidden almost casually in the accompanying Acas Code of Practice and Guidance. The Code (remember, breach of this can be taken into account by a Tribunal) says that the employer should “consider the request carefully looking at the benefits of the requested changes in working conditions for the employee …. and weighing these against any adverse business impact of implementing the changes”. This sounds pretty innocuous, but in fact it marks a pronounced departure from the position under the old regime. Since the Flexible Working Regulations first came into force in 2003, the only real question for the employer has been whether the arrangements sought fall inside or outside one or more of the 8 permissible reasons for refusing a request. If the request is not viable for one of those reasons then it could be rejected, irrespective of the extent of the adverse impact on the employee.
The wording in the new Code (“looking at the benefits ….for the employee”) suggests that this is no longer the case. It implies that the employer should have to grant flexible working requests to particularly needy employees in circumstances where it would be entitled to reject that same request made by somebody else. This is a very serious issue if it is true, since it would necessarily involve the employer in investigating and making value judgements about the importance of the reason to the employee, and by extension, about the alternative arrangements which the employee might be able to make to accommodate his personal/childcare/religion/disability needs. These are really not questions which an employer should want to get into. The scope for being accused of demonstrating discriminatory assumptions, scepticism, nosiness or ignorance is substantial.
In my view, employers should disregard that paragraph and focus, as before, solely on whether any of the eight permissible reasons applies to the arrangements requested. Remember that the information required to be contained in a statutory flexible working request does not even include the reasons why the request is made, so it cannot have been the Government’s intention that employers should take those reasons into account. I am reinforced in this by the Guidance. This says that meeting with the flexible working applicant is desirable because it “allows the employee to explain the reasons why they are seeking the change if they choose to tell their employer this”. In other words, there is no compulsion to tell the employer why the flexible working arrangement is sought. In addition, the Guidance also states clearly that the employer is not required to make value judgements about which request is most deserving. Against that, the very next sentence of the Guidance says that when considering each case on its merits, the employer should look at “the possible impact of refusing a request”. Assuming that this means the possible impact on the employee (anything else would be meaningless), those two consecutive sentences are directly contradictory.
Nonetheless, I prefer the clear statement in the Guidance that “requests should be considered in the order they are received”. As soon as you begin to treat the later of two mutually incompatible requests more favourably because it is driven by some Equality Act protected characteristic and the consequent fear of proceedings, you descend from order into chaos where more than one application is extant at the same time. An employee’s need to work flexibly can be wholly imperative without stemming from such a characteristic at all. If two requests are mutually exclusive, the only circumstances in which I would advise taking them out of the order received is where the later one is driven by a disability and could represent a reasonable adjustment. In those circumstances an element of positive discrimination is already not just permissible but required. Otherwise the minefield which awaits the employer as soon as it tries to depart from the order-received principle could be deep and deadly.