In GB the law on eligibility to request flexible working arrangements is due to be extended on 30 June 2014 to cover all employees' who have completed 26 weeks' service. Employees will no longer have to have responsibility as a parent for children under the age of 16 and/or as a carer for an adult over the age of 18.  This extension does not yet apply in Northern Ireland. However, DELNI's consultation paper published in April this year proposed a similar extension be introduced in NI.  The practical steps below should be continually reviewed in light of any changes implemented.

Right to request

  • The Employment Rights (Northern Ireland) Order 1996 gives employees the right to request flexible working. The Flexible Working (Procedural Requirements) Regulations (NI) 2013 has also extended the right to allow agency workers to request flexible working following a return from parental leave.  Together those categories of individuals have been referred to as 'employees' for the purposes of this note.   
  • An employee may make a request to alter their working hours, times of work and place of work.
  • Employers must consider any requests made.
  • However, it is important to highlight that Employees have the right to ask for flexible working - not an automatic right to have that request sanctioned.
  • Flexible working arrangements include part-time working, flexi-time, staggered hours, compressed working hours, job sharing, annual hours etc.

Eligibility

In order for an applicant to be eligible to make a request for flexible working they must:

  • be an employee (or agency worker returning from parental leave);
  • have worked for their employer continuously for 26 weeks at the date the application is made;
  • not be an agency worker or a member of the armed forces; and
  • not have made another application to work flexibly under the right during the preceding 12 months.

Employees have a statutory right to ask for flexible working arrangements if they:

  • have responsibility for caring for children under the age of 16 (18 if disabled); and/or
  • have responsibility for caring for an adult over the age of 18.

Statutory Procedure and time limits

  • The employee must submit their request in writing.
  • Employers must respond and meet to discuss an employee's application within 28 days of receiving the request.
  • The Employer is under an obligation to notify the Employee of their decision within 14 days of the meeting.
  • If the request is rejected, the Employee has the right to appeal the decision.  The employee must appeal in writing, within 14 days of the employer's decision.

Accepting the request

  • It is important for employees to note that if the request is accepted, this will be a permanent change to the employee's contractual terms and conditions unless agreed otherwise.
  • If the employer or employee has reservations about this, the employee could work flexibly over a trial period or it could be agreed that the arrangement will be temporary, but such arrangements must be discussed and agreed in writing.

Rejecting the request

The legislation recognises that an employer may have entirely legitimate business reasons why it cannot accommodate a specific flexible working request. For this reason there are eight specific statutory grounds for rejecting a request:

  • The burden of additional costs;
  • Detrimental effect on ability to meet customer demand;
  • Inability to re-organise 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; and
  • Planned structural changes.

It is essential that the employer's notice of refusal is in writing, dated and states which of the statutory grounds applies.  A rejection decision must also contain "sufficient explanation" as to why the chosen ground(s) apply in relation to the application. The notice of refusal of an initial application must also set out the appeal procedure.

Subjective test

In selecting the ground for refusal the test is a subjective one on the part of the employer. If the employer considers that one of the grounds applies, then the test is satisfied. The test does not require any question of reasonableness into this judgment. Only if the employer's view is based on incorrect facts, could the decision actually be overturned. However and with that being said, the requirement to include an explanation as to why the particular ground applies will indicate an employer's assessment of the underlying factual circumstances.  The employee may question this explanation.

Flexible working policy

  • Employers should develop and implement a Policy which acknowledges their commitment to providing flexible working arrangements for all employees.
  • Establish a procedure for considering employees’ requests for flexible working arrangements and for implementing the decisions that are made.
  • Employers should ensure that the procedure adheres to the statutory procedure set out above.
  • Employers should ensure that no group or category of employees are routinely excluded from having applications accepted as the perception of "blanket restrictions" are likely to attract tribunal actions.  In such circumstances the reasons for refusal must be plainly identified and explained in line with the statutory exceptions.
  • Remember, emails on this subject are not privileged and so will be "discoverable" in any tribunal proceedings relating to the decision making process.
  • Review your policy at least annually to ensure it remains up to date.

This commentary is current as at June 2014 and is intended for guidance only. Full legal advice should be obtained in relation to your particular circumstances and commercial objectives on a case by case basis.