Since 30 June 2014 the right to request flexible working, previously only enjoyed by parents and carers, has been extended to all employees who have completed 26 weeks' service. This was brought in under the Children and Families Act 2014 and is expected to yield, at the same time as a change to the law, a considerable cultural shift in the workplace in terms of flexible working. The right to make an application for flexible working is open to employees only (not agency workers or office holders). It has to be made in writing, largely in the same form as was required previously.
The prescribed time limit for considering a flexible working request has been replaced with a duty to deal with a request in a ‘timely manner’. However, a request, including any appeal, will need to be dealt with within three months of it being made (unless the employee agrees to an extension).
A discussion with the employee will not be needed if you are happy to accept the request as made. Otherwise, the discussion should be held in an appropriate setting, and it is best to allow the employee to be accompanied by a work colleague or trade union representative. The discussion does not have to be face to face and can, subject to the employee’s agreement, be held by telephone: for example, in cases where the employee is on maternity leave.
You are not obliged to grant a request for flexible working if you can show that it cannot be accommodated for one or more of the eight prescribed business reasons (which remain the same as before and include: additional cost; inability to reorganise work amongst other staff; and a detrimental impact on ability to meet customer demand). However, you do well to consider such requests with care and to be ready to show that you have weighed the benefits to the employee of the changes being requested against any adverse impact on the business as a result of them being implemented.
In coming to such a decision, it is worth bearing in mind the following:
- It is important to establish, with the employee making the request, the circumstances that have led to them making it. Often employees are only looking for an informal change for a short period: for instance to cope with a bereavement or to pursue a short course or study. The change can then be agreed to be on a temporary basis with them reverting back to their substantive work pattern at the end of an agreed period.
- If you are unsure whether or not the arrangements being requested can be accommodated by the business in practice, or where you require evidence to show that the negative impact you are anticipating will have that effect, it is worth considering whether to agree to the flexible working arrangement for a temporary ‘trial period’ and to review it at the end of that period, rather than rejecting it outright.
- When a decision is made to reject the request, it is important to set out the reasons for doing so clearly in writing and to link it to one or more of the eight prescribed grounds, together with such evidence as is available in support. The employee must then be given an opportunity to appeal the decision.
- When considering a flexible working application, care needs to be taken not to inadvertently discriminate against the employee on the grounds of a protected characteristic or because they work on a part-time basis.
Handling such flexible working applications will be made more manageable if a Right to Request Policy is introduced or, if you have one in place, updated to take account of these changes, it is advisable to encourage employees, in the policy, to make it clear from the outset whether their flexible working request is being made as a result of a disability or caring responsibilities, in order that you are alerted to the need to be conscious of the additional rights the individual may have when considering their application.