On 30 June 2014, the Flexible Working Regulations will be extended to cover all employees who have completed 26 weeks' service. Applicants will no longer have to have responsibility for caring either for children under the age of 17 (or 18 if the child is disabled) or adults over the age of 18. Those requests can, as at present, include changes to working hours, working time or working location.
It is important to note, as Steve Williams, ACAS' head of equality services says, "it's only a right to ask, and it's certainly not a right to have". While employers will not be under an obligation to accept all requests, they will be obliged to consider all requests reasonably within a three-month time frame. This time frame, which can be extended with agreement, must include time for any appeal. The Act does not include a definition for "reasonably" although ACAS has published the final draft Code of Practice (the Code) and supplementary guidance (the Guidance) on how employers should handle requests.
The Code suggests following a process that is similar to that used currently, albeit without the prescribed time frames: meeting with the employee as soon as possible to discuss the request, considering the request objectively, communicating the decision to the employee, and if rejecting, providing one of 8 business reasons.
The Act specifically provides examples of reasons that employers can use to justify a refusal, including the ability to meet customer demand and additional costs. The same considerations that have applied since the introduction of the right to request in 2003 still apply and the need for evidence to justify the decision remains crucial. Employees retain a right of appeal where dissatisfied with the decision.
What will happen when employers are faced with competing requests from employees?
While the Guidance recognises that it may not be feasible for employers to agree to all requests, it states that each request should be considered on its own merits at the time that it is made. Where employers cannot distinguish between employees' requests, the Guidance suggests that employers may employ a method of random selection, although it advises that employers should make clear to employees that this is how this situation will be dealt with.
The Code also anticipates that it might be possible to gather employees together to discuss the requests made, in the hope of reaching a compromise that is agreeable to all. This may not appear realistic, given that the needs and interests of individual employees will clearly change over time.
Organisations will need to be careful to avoid inadvertently discriminating against any individual because of a protected characteristic covered by the Equality Act 2010. While employers should avoid immediately approving requests from individuals with protected characteristics, practically, where competing requests are made, an employer may feel compelled to make a decision in the light of the potential risk of a discrimination claim. The key will be for employers to consider requests properly and avoid making arbitrary decisions!
The risks of getting it wrong include tribunal claims for breach of the Act in relation to the process, constructive dismissal and/discrimination, the latter being perhaps the most likely claim.
Many organisations already offer flexible working to the entire workforce so there is unlikely to be a flood of applications on 1 July. However, now is a good time to review policies, procedures and practices to take into account the changes, review the ACAS guidance and consider ways to support managers (including training) on how to handle the flexible working conversation.