Currently, those with caring responsibilities for children aged 16 or under, or for dependent adults, have the right (once a year) to request flexible working – defined as a change to the hours or times they work or a change to the place of work (as between home and workplace).
This time next week the right to request will be available to all employees with 26 weeks' service, regardless of why they want to work flexibly. In addition, the statutory procedure under which employers are obliged to consider requests within strict time limits will be replaced with a duty to deal with requests in a reasonable manner and within a reasonable time, underpinned by a statutory code of practice from ACAS on the meaning of "reasonable".
For applications made on or after 30 June, employers will have to deal with both flexible working requests and appeals within three months from receipt; including arranging a meeting with the employee (allowing the employee to be accompanied by a work colleague). The ACAS code tells employers they must weigh the benefits (for both employee and employer) of the request against any "adverse business impact", rather than against just the cost of implementing the changes.
It will still be the case, as before, that the request can only be rejected if the employer considers that one of the business reasons set out in the legislation applies:
- additional costs
- inability to reorganise work or recruit additional staff
- detrimental impact on quality or performance or ability to meet customer demand
- insufficient work in the periods the employee proposes to work
- planned structural changes to the business.
A claim can be brought in an employment tribunal if a request is refused for a reason other than one of the listed grounds but compensation is currently capped at under £4,000. The more significant risk of rejecting a request (whether or not made under the formal procedure) is that the employee might be able to resign and claim unfair constructive dismissal and, depending on the type of request, a refusal could be challenged as indirect discrimination, in which case an employer might have to justify its decision on objective business grounds. Compensation for a successful discrimination claim is uncapped.
Traditionally, these have been sex discrimination claims but now there may well be more requests from older employees – those approaching retirement, for example, or looking after grandchildren – so the possibility of age discrimination claims being made if requests are rejected should not be ruled out. Employers must have comprehensive flexible working policies in place to deal with requests from employees in differing circumstances. In The Solicitors Regulation Authority v Mitchell, a case we covered earlier this year, the EAT found that the withdrawal of an employee's flexible working arrangements, in circumstances where similar arrangements for a male colleague were not changed, was direct sex discrimination.
Equal pay audits
Another of the changes coming in as a result of the Government's Modern Workplaces consultation in 2011 is the introduction of mandatory equal pay audits. For claims made on or after 1 October this year, employment tribunals will be able to require employers who are found to have committed a serious breach of equal pay law to carry out an equal pay audit. There will be an exemption for micro (fewer than 10 employees) and start-up businesses, for ten years, as well as for employers who have carried out an audit satisfying certain requirements within the last three years.
Regulations covering the detail have now been issued and they confirm that the equal pay audit results will have to be published on the employer's website (if the employer has one) for three years, as well as being disclosed to the employees covered by the audit.