From today, all employees who have been employed for 26 weeks have the right to request to work flexibly, not just those who are parents or carers. There are also dramatic changes to the procedure for making such a request, with the old, prescriptive, statutory regime being replaced by a “requirement to deal with the request in a reasonable manner”. This revised approach is reflected in a new ACAS Code and Good Practice guide, which makes recommendations as to how to deal with requests under the new regime. According to ACAS, the Code is “deliberately concise” and “principles based”.
The basic right to request flexible work is unchanged. Employees can still make up to one written request every year, which the employer can refuse on any of the existing eight business grounds. Employment tribunals will not normally investigate the rights and wrongs of the refusal of a request, but will investigate how the request is dealt with.Similarly, the maximum compensation for a failure to comply remains at eight weeks' pay, with a week’s pay currently capped at £464 per week. Consequently, under the new regime, as now, most employers will be concerned less about the risk of a claim under the right to request and more about the risk of claims of discrimination with potentially unlimited compensation.
What has changed?
Any request, not just those from parents and carers, must now be dealt with as soon as possible and within a three month time scale, at the end of which the employer must notify the employee of its decision. The ACAS Code recommends that employers should talk to an employee privately after receiving a written request, allowing employees to be accompanied at any discussion, then consider the request carefully before informing the employee in writing of any decision. The employer should then discuss with the employee how and when the changes might best be implemented or allow an appeal. Although there is no requirement to allow an appeal, the ACAS Code suggests that employees should be allowed to appeal against a rejection. The appeal should be concluded, if possible, within the three month period. If more time is needed for any reason, a longer period should be agreed with the requesting employee. Although an overall timescale of three months is given for the process as a whole, there is no indication of what timescale should apply in relation to each step of the process. Employers will need to remain vigilant to see that the three month time scale is not exceeded without an agreed extension.
A little more detail
In order to make a request an employee must make a written application. This must:
- state that it is an application made under the statutory provisions;
- 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.
There is no requirement for the employee to explain why he or she wants the change and he or she is consequently under no obligation to give any reason for the request. Many employers therefore make the giving of a reason optional in any policy or standard letters, though of course if the employer genuinely does not know the reason it would be harder for the employee to successfully claim discrimination.
Importantly, an employer can treat a request as withdrawn when the employee, without good reason, has failed to attend both the first meeting arranged by the employer to discuss the employee's request or appeal and the next meeting arranged for that purpose. The ACAS Guide suggests that the employer should find out and consider the reasons for the employee failing to attend both meetings before reaching any decision to treat their request as withdrawn. Key for employers is that they cannot simply treat the request as withdrawn, but must notify the employee of their decision.
Employers retain the right to refuse a request to work flexibly on the existing statutory grounds, which include cost; quality; performance; insufficiency of work during the periods the employee proposes to work; and 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.
- Ensure any agreement to change employment terms is recorded in writing;
- Avoid making value judgements between competing claims about which claim is considered more worthy –concentrate on the needs of the business and sound business reasons for allowing or rejecting a request;
- Be very clear about what is being expected of the employee who will be working flexibly. For example, if agreeing to homeworking, an employer may want to ensure that an employee will be contactable at any time on a mobile or home phone number, and will attend the office on a regular basis;
- Trial periods may also play a useful role, particularly if an employer is unsure about whether the arrangements requested can work. The mechanics for such a trial will usually be that the employer and employee agree to an extension of the three month decision period to accommodate the trial period. Employees are far less likely to be disgruntled if employers, from the outset, are clear and honest about any factors which cause concern and manage expectations by maintaining dialogue to ensure the employee is aware of the employer’s perception of how the trial is going; and
- Review current policies and procedures to check that they are “fit for purpose” in light of these changes. Employers may want to include a policy to avoid value judgments being made when dealing with multiple and competing requests, and to ensure consistency.
Employers are likely to face a significant increase in the volume of requests for flexible working and many more competing requests. It is, therefore, important that they know when to say ‘no’, show fairness, and make sure that employees are working when they are needed. Consideration needs to be given to questions such as, what proportion of a team will be allowed to work flexibly and how can that position be defended? In many workplaces, there is still a stigma attached to those who work flexibly, and this deters some workers, particularly men, from seeking permission to alter their working pattern.
It is essential for employers to develop a consistent approach across a workforce, so that all requests are treated fairly, or risk an increased exposure to claims both under the flexible working or the potentially more costly discrimination regime.