Employers will need to take steps to prepare for the extension of the right to request flexible working arrangements on 30 June.
As from 30 June 2014 the right to request flexible working arrangements will be extended to all employees with at least six months’ continuous service. At the same time most of the detailed procedural requirements will be swept away and replaced with a duty to deal with applications “in a reasonable manner”. In deciding whether employers have complied with this new general duty, employment tribunals will take into account a new ACAS code of practice, as well as supplementary best practice guidance.
The necessary legislation is included in the Children and Families Act, which received Royal Assent in March 2014. In the coming weeks regulations will be made to bring the relevant provisions into effect on 30 June and to remove the redundant regulations that currently apply.
What hasn’t changed
The basic legal framework has not changed. Exactly the same principles will continue to apply when considering such requests and the grounds for refusal remain unchanged. The right – albeit extended to the majority of the workforce - retains the same basic characteristics. It remains a right to ask for a change to working patterns, not the right to change them.
In addition, employers need to continue to bear in mind that employees with protected characteristics may enjoy more extensive rights under the Equality Act. Examples would include the obligation to make reasonable adjustments for employees with a disability, or to justify the indirectly discriminatory effect of inflexible working arrangements on female employees with caring responsibilities, particularly on their return from maternity leave.
What has changed
The new ACAS code makes it clear that dealing with a request reasonably is likely to involve many of the same steps as those currently laid down in the procedural regulations.
As a bare minimum the ACAS code requires requests to be discussed with employees and decisions to be notified in writing. There is no longer a formal legal requirement to allow workers to be represented at meetings to discuss the request, or to allow an appeal against an adverse decision. However the code suggests that employers should do this as a matter of good employment practice.
Rather than stipulating individual time limits for each stage in the process, from 30 June employers will be subject to a three months’ time limit as a back stop, which will include dealing with the original application and any subsequent appeals. However, the requirement to deal with the application in a reasonable manner may well entail dealing with it in a shorter time frame in many cases.
Dealing with multiple requests
The extension of the right makes it more likely that employers may receive a number of different requests simultaneously. The ACAS guidance offers some suggestions about how this situation can be managed.
It points out that employers are not expected to judge the comparative merits of each request, but will still need to devise a fair way of managing such a situation. One idea it puts forward is that it might be possible to get the employees involved to agree to draw names from a hat. However other ideas are probably more realistic, including a suggestion that employees who are already working flexibly could be approached to see if they would be prepared to change their arrangements to accommodate a later request.
Employers will need to consider whether to continue with their existing procedures, simply extending them to all employees with the necessary qualifying service, or whether to change them to take advantage of the more flexible procedural regime.
They will also need to review any management guidance, particularly about how best to deal with competing requests. It remains to be seen how many employees who are not carers will wish to take advantage of the extension of the right, so it would be prudent to build in a review once the new legislation has bedded in.