The right to request flexible working is currently only available to parents of children under the age of 17 (or 18 if disabled) and certain adult carers.
From 30 June 2014, the right to request flexible working will apply to any employee, provided they have 26 weeks’ continuous service with their employer, irrespective of whether they have any caring responsibilities.
The extension of this right to all employees is a significant development in that it places all employees (at least to some degree) on an equal platform where access to flexible work opportunities are concerned, say Pam Sidhu (Head of Employment) and Lisa Outram (Assistant Solicitor), employment law experts at The Wilkes Partnership.
The ramifications for businesses could be significant, although the jury is largely out at present as to whether the change is to be welcomed or not, particularly for smaller businesses with concerns over more red tape.
What is the new right?
As of 30 June 2014, the right to request flexible working will be extended to all employees with at least 26 weeks’ continuous service regardless of their caring responsibilities. Employees are only allowed to make one request per year.
The existing flexible working procedure will be replaced with a much less prescriptive one, which will be welcomed by employers. Instead of detailed requirements around convoluted notifications and deadlines that applied under the old procedure, employers will simply be obliged to deal with requests in a ‘reasonable manner’ (see further detail below as to what this might mean).
Additionally, employers will need to notify employees of their decision within 3 months, unless an extension is agreed. Employers can withdraw a request if an employee fails to attend two consecutive meetings to consider the request, or the same in relation to an appeal.
It is hoped that the abolition of the prescriptive statutory procedure will allow employers the freedom to operate their own procedures for dealing with applications, providing that the process adopted is reasonable.
The statutory grounds for refusing a request will remain the same as before. The eight grounds available for refusing a request are: –
• the burden of additional costs
• detrimental effect on ability to meet customer demand
• inability to re-organise 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; or
• planned structural changes.
The employer’s decision on any of the above grounds can only be challenged if it is based on incorrect facts. Otherwise, an employment tribunal will not usually enquire into the rights and wrongs of a refusal, only whether the procedure was followed.
What does handling the request “in a reasonable manner” mean?
This could cause confusion for employers, as this is not specifically defined in the legislation.
A Code of Practice (currently in draft form) has been prepared by ACAS (the Arbitration, Conciliation and Advisory Service) to assist employers in respect of their new obligations, supplemented by a more detailed ACAS guide.
The guidance is helpful in that it provides an indication of what could amount to handling requests “in a reasonable manner”. For example, even though there is no right in the new legislation for an employee to be accompanied to meetings or be afforded a right of appeal against a decision to refuse the request, ACAS recommends this would be best practice.
The guidance also usefully provides detailed examples of when a flexible working request may be refused or accepted by an employer, based around the eight business reasons listed above.
The ACAS Code of Practice (currently in draft form) can be found at: http://www.acas.org.uk/media/pdf/n/b/DRAFT-Code-of-Practice-on-handling-in-a-reasonable-manner-requests-to-work-flexibly.pdf
The accompanying guide can be found at: http://www.acas.org.uk/media/pdf/g/h/Handling-requests-to-work-flexibly-in-a-reasonable-manner-an-Acas-guide.pdf
Burden or boon for business?
Pam Sidhu comments: “Proponents of the new right refer to research indicating that the extension of the right to request flexible working will lead to a reduction in cost for business – namely reduced absenteeism and stress, decreased recruitment and retention costs, and increased performance levels from staff feeling more engaged and committed as a consequence of being allowed to work flexibly. However, small businesses will inevitably feel the pain in terms of the red tape involved, more than larger employers. Most businesses report that they have always allowed some kind of flexible working informally, but now they will have to bind it in red tape to avoid claims.”
The cost of non compliance with the new regulations is 8 weeks’ pay per employee (with each week’s pay capped at £464), plus additional (uncapped) compensation where employees have additional claims based on their rights under discrimination legislation, as well as unfair dismissal law. The cost of getting it wrong could therefore be expensive.
Lisa Outram comments: “Our view is that there will not be an immediate flurry of requests for flexible working on 30 June 2014. More likely, there will be a gradual increase in such requests over time. It is vital that employers consider how they may accommodate requests from employees for flexible working from 30 June, including consideration of the complicated question of how to deal with competing requests submitted at the same time. Employers should review the ACAS guidance with a view to amending internal policies and procedures.”
If you would like to discuss any issue or query arising from this update please contact Pam Sidhu or Lisa Outram or your usual contact in the Employment team. Alternatively email us at [email protected]