As of today, 30 June 2014, any employee with at least 26 weeks’ service will enjoy a statutory right to request a flexible working arrangement (usually part-time or changed hours or working from home). This replaces the previous regime which applied only to parents and carers. It also replaces the current formal statutory procedure which applied to such requests and places a duty on employers to deal with requests in a reasonable manner. The right remains only a right to request flexible working, not an absolute right to work flexibly.
All employees qualify for the statutory right to ask for flexible working after 26 weeks' employment. The right previously only applied to the parents of children under 17 - or 18 in the case of parents of disabled child - or to those caring for an adult. An employee can only make a statutory request once in any 12 month period. Qualifying employees can request changes to their working hours, time and location. Employers must consider all requests made and reach a decision within 3 months.
Acting in a ‘reasonable manner’
ACAS has produced a statutory Code of Practice and Guidance to help employers deal with requests in a ‘reasonable’ manner. In particular, the Code suggests that upon receipt of a request an employer should:
- Arrange a meeting with the employee as soon as possible after receiving their written request.
- Discuss the request with the employee to better understand the changes he or she is requesting and how they might be mutually beneficial.
- Consider the request carefully: looking at the beneﬁt of the requested changes in working conditions for the employee and the business and weighing these against any adverse business impact of implementing the changes.
Importantly, as previously, employers can reject the request one or more of the following grounds:
- The burden of additional costs.
- An inability to reorganise work amongst existing staff.
- An inability to recruit additional staff.
- A detrimental impact on quality.
- A detrimental impact on performance.
- Detrimental effect on ability to meet customer demand.
- Insufficient work for the periods the employee proposes to work.
- A planned structural change to the business.
Once an employer has made a decision it must inform the employee of that decision in writing as soon as possible. If the employer accepts the request, or accepts it subject to alterations, it should discuss with the employee how and when the changes might best be implemented. If the employer rejects the request it should allow the employee to appeal against the decision.
Complaints can be made to the employment tribunal about the employer's handling of a flexible request. However, unless the employer's treatment of the employee constitutes unlawful discrimination, the tribunal can only adjudicate on whether the employer followed the procedure properly, took the application seriously, took the claim on the correct facts and whether its reasons for rejecting the application was on one of the acceptable grounds.
Employees may be able to bring a tribunal claim if they feel they are being unfairly treated because of a characteristic protected under the discrimination legislation if their request is rejected.
Employers are likely to see an increase in the number of employees requesting flexible working. It will therefore be important for employers to review and amend existing policies and ensure managers are properly equipped to deal with the requests they receive. ACAS suggests that employers engage all relevant parties, including employee representatives, when drafting any new policy.
Employers will need a clear strategy in place to handle competing requests from employees. ACAS acknowledges that it may not be possible to accommodate all requests and that requests should be treated on a first come, first served basis - this means that the business context upon which the next decision will be made may be different. An alternative suggested by ACAS would be to hold a random draw, subject to employee consent. However, we do not anticipate that many employers would want working arrangements to be decided by tombola.
It may well make sense for employers to make any flexible working arrangements they agree to in principle subject to a trial period and annual review to ensure that the arrangements work for all parties.
When considering requests, employers must also be careful not to discriminate against an employee whom has a protected characteristic under the Equality Act 2010, such as pregnancy, maternity or who has a disability. Claims of discrimination can of course be brought by staff who cannot rely on the statutory right to request flexible working because they have under twenty-six weeks' service. Ultimately, employers should still consider each request on its merits and the potential business impact of any flexible working arrangements.