From June 30 2014 the right to request flexible working was been extended to all employees with at least 26 weeks’ continuous employment and is no longer limited to those with carer responsibilities either for adults or children.
Any request for the flexible working must be made in writing and an employee can only make one request in any rolling 12 month period.
In respect of the changes requested this could be a change relating to the hours worked, the times worked and the place worked. Therefore there are few limits as to what an employee can request by way of variation.
The previous regulations in relation to responding to a flexible request have been replaced. An employer who receives a request has now three months to consider the request, discuss with the employee and then notify the employee of the outcome.
The emphasis is on the employer treating the flexible working request in a reasonable manner. An employer can still refuse a request for one or more of the eight reasons as set out below:
– Burden of additional cost
– Detrimental effect on ability to meet customer demand
– Inability to reorganise work amongst existing staff
– Inability to recruit additional staff
– Detrimental impact on quality
– Detrimental impact on performance
– Insufficient work during the periods the employee proposes to work
– Planned structural changes
An employee can complain to a tribunal if the employer fails to deal with the application in a reasonable manner, fails to notify them of a decision on the application within the decision period or if the employer fails to rely on one of the statutory grounds when refusing the application.
ACAS have produced a code which provides guidance in relation to what could constitute a ‘reasonable manner’.
The Code suggests that employers should meet with the employee as soon as possible after receiving the request and recommends that employers should allow their employees to be accompanied by a work colleague.
Employers should make sure they have written procedures in place to ensure that a request is considered in accordance with the new regime.
The employer will need to be ready to deal with situations where it will not be possible to make a final decision within the decision period and to agree an extension with the employee.
The employer should bear in mind that an outright rejection of the application on a technical point is unlikely to be looked upon favourably by a tribunal.
The employer should consider the request before meeting the employee and demonstrate serious consideration of the request.
Alternative ways to meet the employee’s objectives should be considered if the proposed working pattern cannot be accommodated for business reasons.
Approach the request from a positive perspective.
Explain the reasons for the decision fully to the employee and provide examples of how any alternatives or the impact on the business was considered.
It is important for the employer to maintain records so that it is able to respond to any potential claims.
Many employers already had in place a policy whereby a request for flexible working for employees other than for the purposes of providing care would be considered. However, the new regime may give an incentive for older employees looking to reduce their hours and employees looking to part time study and/or training which may in the long term benefit the employer.
Taylor Walton can advise on any changes in relation to an employer’s flexible working policy and any requests received from an employee under the new regime.
Alec Colson is a solicitor in the Employment Law Department at Taylor Walton Solicitors. If you have any questions about this or any other employment topics contact Alec on 01582 731161.
The information in this article was, at the time of publication, believed to be a correct statement of the law. However, readers should seek specific legal advice on matters arising, and no responsibility can be accepted for action taken solely in reliance upon such information.