Following a review of family-friendly employment law in a “Consultation on Modern Workplaces” in 2011, the Government criticised the existing rules, saying they were old-fashioned, and needed to be changed. As part of that review process, there are now some new rules on requesting flexible working.
Since 2003, any employee with a child under 17, or under 18 if the child was disabled, or an employee caring for a close relative at home has been able to ask for flexible working patterns. From 30 June 2014, new legislation in the Children and Families Act 2014 extends that right to request flexible working to all employees with 26 weeks’ service, rather than just those who qualify as parents or carers.
The new regime is intended to be simpler and give employers the freedom to operate their own procedures. They are no longer required to follow a set statutory process when looking at flexible working requests, eg following prescribed time limits for holding meetings, as this could be time-consuming and restrictive. Instead, employers need to consider requests “reasonably”, using the statutory ACAS Code of Practice, “Handling requests to work flexibly in a reasonable manner” and an ACAS guide, to help them decide what “reasonably” means in the context of their organisation. ACAS suggests that this will include things like eg dealing with requests promptly, discussing them with the employee, and communicating decisions in writing.
Crucially, employers can still turn down a request for flexible working based on one of a number of set reasons, such as for example, the burden of additional cost, a detrimental effect on ability to meet customer demand or insufficient work available when the employee proposes to work; or they can negotiate with an employee to reach a mutually acceptable compromise.
In outline, an employee triggers the procedure by making a written request (one is allowed per twelve month period). An employer then has a three month decision period, which can be extended by agreement, to consider the request, discuss it with the employee if appropriate, and tell the employee the outcome.
The change requested can relate to hours worked, the times when an employee is required to work, or to a change in the place of work. This covers a range of possible work patterns, including part-time working, annualised hours, compressed hours, flexi-time, homeworking, job-sharing, shift-working and term-time working, among others. There are in fact few limits as to what an employee could request.
Is the change good for business?
A fixed 9-5, Monday to Friday office-based routine may well soon no longer be the norm, and there are clear possible benefits for employers from increased flexibility such as a reduction in overheads, greater staff loyalty, and falling absenteeism.
Other benefits can include access to remote working for employees who live in rural areas, or reduced commuting times for those who work in cities, from staggered start/finish times which ease traffic congestion. Flexible working can also be good for the economy generally, as it can encourage parents back to work through help with childcare arrangements. It may also help avoid compulsory redundancies if times are difficult.
Resistance to cultural change in an organisation is thought to be one of the biggest obstacles to the successful introduction of flexible working. Other concerns employers have raised include the perception of fairness, as not all kinds of flexible working are suitable for all parts of an organisation, or all roles. There may also be investment required in IT for increased remote working.
As with the previous statutory scheme for flexible working requests, there are a number of key practical issues which employers need to consider to reduce the chances successful employment tribunal claims being made against them. Although the potential compensation available to an employee for a breach of the flexible working rules is limited to eight weeks’ pay, if an employee claims that the refusal of their request also amounts to discrimination, (typically, requests made by employees seeking to vary their working hours in accordance with childcare commitments, by employees with religious requirements, such as time off to pray or attend worship, or by disabled employees), then compensation could be substantial.
- Meet the statutory requirements
While the statutory process is now far less prescriptive, employers should make sure that they have written procedures, or a flexible working requests policy in place to ensure that the basics are covered.
- Demonstrate serious consideration of the request, starting from a positive perspective
Tribunals have been critical of employers who appeared to be more concerned to explain why a requested work pattern could not work, rather than investigating how it could be accommodated.
- Consider alternatives, rather than only the initial request
It may still be possible to reach an agreement which satisfies both parties.
- Explain the decision and the reasons fully and clearly
While tribunals have been reluctant to look behind the commercial reasons for an employer’s decision to refuse a request, they do remain entitled to find that a rejection has been made on the basis of “incorrect facts”, a finding which could be easier to make where the basis of the decision is unexplained.
- Ensure consistency
Under the previous regime, the BIS Guidance stated that employers should consider each application objectively, and not attempt to judge whether one applicant’s need for flexible working is greater than another’s. That approach is repeated in the ACAS guide. There is an element of “first come, first served” when it comes to granting requests, but care should be taken when two competing requests are submitted - one employee may have stronger grounds than the other for challenging a rejection of their request.