Earlier this year the government opened up requests for flexible working to all employees with 26 weeks’ continuous employment. Whereas previously the entitlement was confined to those with dependants, any employee can now make the request for any reason. Jacqueline Kendal in the Employment Group at Rosling King, takes a look at what’s happened in the last four months.

How has it been received?

Employers who are able to accommodate flexible working requests and who have made the right to request flexible working open to all their staff, have generally reported favourable results in terms of staff retention and morale. However, this approach is likely to be easier for larger employers with flexible staffing requirements and, inevitably, it is smaller employers and those with highly specialised workforces, that  face more of a challenge in seeking to accommodate requests to work flexibly. The Federation of Small Businesses expressed concerns about the likely additional administrative burden and added that the right could introduce a "negative dynamic" into the workplace, particularly in the case of unsuccessful requests.

The government expects the extension of flexible working rights to be of particular interest to older workers approaching retirement and to young workers looking for additional training while they work. Although there is no evidence that this has been the case so far, these are two groups who were unlikely to fit the previous flexible working criteria.

Undoubtedly it is going to be difficult for employers to balance the various flexible working applications, their duties under discrimination law and their business needs all at the same time. The scheme does not specify an order of preference so it may be that there is a chronological order of preference if, for example, only one out of three requests can be accommodated.

Equally challenging for many employers will be fulfilling their duties to an employee if they need flexible working as a reasonable adjustment to enable them to work, even if the workplace has reached its flexible working capacity.

As always we will only know what will happen when the first cases start coming to the Employment Tribunal. However, the end result may be that those who originally benefited from the system, will still take priority, meaning that the changes will not be particularly noticeable.  

How it works

The employee triggers the procedure by making a written request. The employer then has the three-month decision period (which can be extended by agreement) within which to consider the request, discuss it with the employee (if appropriate) and notify the employee of the outcome.

The employer can still only refuse a request for one (or more) of the below reasons:

  • 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.

Rules for employees

Only one request can be made in any 12-month period.

Employers beware

The employee 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 the employer to do so do not apply.

ACAS have published guidance but unfortunately the 3 page guide is a brief “principles-based approach” which is not as helpful as it could be to employers.

Possible changes are:

  • Hours worked.
  • Times required to work.
  • Place of work (e.g. home or any of the employer's workplaces).

Despite the apparent simplicity of the new rules, the possible work patterns are wide ranging and include, among others, part-time working, annualised hours, compressed hours, flexi-time, homeworking, job-sharing, self-rostering, shift-working, staggered hours and term-time working. In addition, an employee can request a temporary change.

Employees should note:

The application must be in writing, dated and state that it is an application made under the statutory procedure. It should:

  • Outline the change sought and when it should take effect.
  • Deal with what effect the change may have on the employer.
  • Specify whether and, if so when, a previous application was made.
  • Mention if the request is made in relation to the Equality Act 2010, for example, as a reasonable adjustment for a disability.
  • Provide as much information as possible about the change they want, what circumstances have led to their request and how the changes they are seeking can be accommodated. 

Practical advice for employers:

An employer who receives a flexible working request under the statutory scheme must:

  • Deal with it in a reasonable manner.
  • Arrange a meeting and discuss the request with the employee, the employee should be allowed to be accompanied at the meeting.
  • Notify the employee of its decision within three months from the date of the request.

During the meeting you should:

  • Highlight what effect the change may have on the employee’s terms and conditions.
  • Take account of operational and day-to-day issues (you may need new contractual provisions to address these issues and avoid future confusion).
  • Consider a trial period.

Following the meeting employers should:

  • Consider requests carefully, looking at the benefits and disadvantages.
  • Inform employees of their decision in writing.

Appeals

There is no requirement for an appeal process following the decision but ACAS guidance suggests that employees should be allowed to do so.

Summary

While it may be too soon to assess the full impact the changes will have on the workplace, both employers and employees should stick to the guidelines where possible to ensure they are on solid ground.