Since 30 June, all employees with 26 weeks’ service now have the right to request flexible working. The procedure for making such a request has also changed, with the old prescriptive, statutory regime being replaced by a “requirement to deal with the request in a reasonable manner” and to notify employees of their decision within three months of the request.
The legislation does not give employees the right to work flexibly. Instead it provides a right to request flexible working. Eligible employees may request a change to working hours, working time or working location.
HR action items
Employers should update their flexible working policies in line with the new regime and be ready to respond to a possible increase in the number of requests for flexible working. Managers and HR departments should also be trained to deal with flexible requests and should be aware of the importance of recording the reasons for any rejections. Managers may also need to deal with employees working different hours, teams that may not be in the same place at the same time and establish protocols for keeping in touch with remote workers.
Under the previous regime, only employees with 26 weeks’ service and who were responsible for either a child under 17 (or 18 if the child was disabled) or an adult requiring care had the right to request flexible working. Now, the only remaining criterion is that the employee must have 26 weeks’ service at the date of the request and not have made a statutory request during the past 12 months.
- The employee starts the process by making a written request. This must:
- state that it is an application made under the statutory regime;
- specify the change that the employee is seeking and when they wish the change to take effect; and
- explain what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with.
An employee can withdraw a request for flexible working after it has been made. However, they will be unable to make another statutory request for 12 months from the date that their application was made.
- The employer then has three months to make a decision and respond to the employee, which can be extended by agreement.
- The employer must deal with the application in a reasonable manner. This is determined by reference to the new Acas Code of Practice. The Code identifies the following “keys to handling requests in a reasonable manner”:
- consider the request and arrange to discuss it with the employee as soon as possible;
- inform the employee of their right to be accompanied to the meeting;
- consider the request carefully by weighing up the benefits for the employee and business against any adverse business impact;
- inform the employee of the decision in writing;
- discuss with the employee how and when the changes might best be implemented (if the request in accepted or accepted with modification); and
- allow the employee to appeal.
When deciding complaints brought under the statutory scheme (see “Tribunal Claims” below), tribunals can take the Code into account when it appears relevant. Acas has also published some good practice guidance entitled “Handling requests to work flexibly in a reasonable manner” which gives further detail on how to handle requests under the new regime. The Guidance also contains some useful case studies to show how to best approach more difficult situations such as handling multiple requests (see “Competing Requests” below).
Rejecting a Request
Employers retain the right to refuse a request to work flexibly on the existing eight statutory grounds:
- 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.
- Detrimental impact on performance.
- Insufficiency of work during the periods the employee proposes to work.
- Planned structural changes.
Although neither the Code nor the Guidance require it, employers should not only specify which of the statutory reasons applies when refusing a request, but also provide sufficient explanation as to why that reason applies. The Guidance gives examples of each of the business reasons.
The Code states that in order to comply with the duty to “deal with the application in a reasonable manner” an employer must act reasonably in the way it makes its decision, not just in the manner in which it handles the application. It provides “You should consider the request carefully looking at the benefits in working conditions for the employee and your business and weighing these against any adverse business impact of implementing the changes. In considering the request you must not discriminate unlawfully against the employee.” Therefore whilst the test for rejecting a request remains subjective, an employee will now be able to challenge the employer’s decision on the basis that has not weighed up the benefits of granting the request against the adverse impact on the business. This may lead to more Tribunal claims being made in the future.
The fact that the regime is now open to all employees with 26 weeks’ service means that employers may receive more requests. The Guidance provides some insight into how such competing requests should be handled:
- Consider requests in the order in which they are received. If an employer grants a request and then receives another, then the business context will have changed for the purpose of considering of the second request.
- If an employer cannot approve any more requests because it already has a number of employees working flexibly, then it would be good practice to ask those employees working flexibly if any would be willing to change their arrangements to allow others to be accommodated.
- If an employer is dealing with more than one request at a time, the options are (i) to have a discussion with the employees to see if they can adjust their requirements to allow both requests to be granted, or (ii) to have a random selection process, if option (i) is not viable and it cannot differentiate between the requests. The employer should not make a value judgment about the most deserving request.
Notwithstanding what the Guidance says about not making value judgments, employers may well find themselves paying particular attention to a request made by an employee with a protected discriminatory characteristic, particularly where the request is in some way related to that characteristic e.g. a new mother asking to work flexibly after returning from maternity leave may be given priority over a male asking to work flexibly to coach a rugby team. This was not the Government’s original intention behind the new regime. However, discrimination law aside, employers may lose a star employee if their application to work flexibly is rejected.
Employees can complain to a Tribunal if the employer:
- Fails to deal with their application in a reasonable manner.
- Fails to notify them of the decision on their application within the decision period.
- Fails to rely on one of the statutory grounds when refusing their application.
- Bases its decision on incorrect facts.
- Treats the application as withdrawn when the grounds entitling you to do so do not apply.
A Tribunal cannot question the commercial rationale or business reasons behind an employer's refusal nor can it substitute its own decision as to whether the request should or should not have been granted. This restricts the scrutiny to which an employer's decision may be subjected.
A case decided under the previous statutory regime still remains relevant. In Commotion Ltd v Rutty (2005), the Tribunal had found that the grounds for refusing a request were not made out as there was not "a shred of evidence that proper enquiry and proper investigation" was carried out. The Appeal Tribunal held that tribunals were entitled to examine and decide on the factual accuracy of an employer's ground for refusing a request, but not its fairness and reasonableness. This is because an employee is entitled to claim that the rejection was based on incorrect facts and so the Tribunal is entitled to investigate the evidence to see whether it was based on incorrect facts. The Tribunal also found that Commotion had indirectly discriminated against Mrs Rutty and whilst she won on three distinct grounds, she was not awarded a separate remedy for her flexible working claim. This was because the maximum compensation payable for the flexible working claim was included and taken up by the larger compensatory sum awarded in respect of the unfair dismissal claim. Whilst Tribunals can investigate the evidence to see whether a decision was based on incorrect facts, the remedy for a failure to comply with the statutory regime is still limited. However, there is scope for disappointed employees to cause an employer to incur time and expense in defending claims.
It remains the case that a Tribunal may require the employer to reconsider the employee’s request and/or award damages. The maximum award for damages is eight weeks’ pay, capped (currently) at £464 per week. However, if an employee can work the complaint into a discrimination or constructive dismissal claim (as was the case above), then compensation could be much higher. A classic example of a potential discrimination claim where a female employee, who requests flexible working in order to combine work and childcare, brings an indirect sex discrimination claim because the inflexible hours (e.g. full-time work, long hours etc.) are ones which women generally are less able to do, compared with men. The reason that such claims are often successful is because it is well established through case law that women have greater childcare responsibilities and so it is generally recognised that a requirement for full-time working has a disproportionate impact on women, compared with men. However, this is not just an issue for women. A man who has his flexible working request refused without reason could bring a direct sex discrimination claim, if he can show that a woman making the same request would have been treated differently. In addition, it is unlawful to discriminate against someone because of their association with a disabled person. Therefore, if an employee makes a flexible working request because they want to care for their disabled relative, and the employer cannot justify the refusal, he/she may bring a claim for indirect disability discrimination.
Employers should always take flexible working requests seriously and deal with all requests fairly and consistently. Even where a request is made outside the scope of the statutory flexible working regime, employers should not dismiss it without consideration and reason.