SUMMARY: The Children and Families Act 2014 is extending the right to request flexible working.
Until June 2014 only parents of children under 17, or 18 in the case of parents of disabled children, and those caring for an adult can apply to work flexibly under the statutory flexible working regime.
The Children and Families Act 2014
On 30 June 2014, the Children and Families Act 2014 will extend the right to request flexible working to all employees who have 26 weeks’ continuous service. This means that all employees who satisfy the continuous service requirement will have a statutory right to ask their employer for a change to their terms and conditions of employment to work flexibly. This could for example include homeworking, part time working, flexi time, job sharing or shift work.
A new duty to deal with requests in a “reasonable” manner
Those employers who have managed flexible working requests before will be aware that there is a prescriptive statutory procedure with defined deadlines, which has to be followed. This procedure will be replaced with a duty to deal with requests in a “reasonable” manner.
To support employers in ensuring that requests are dealt with reasonably, there will be an ACAS Code of Practice (Handling in a reasonable manner requests to work flexibly) and guidance. In summary, the draft Code and guidance suggests as follows:
- An employer should arrange to meet with the employee to discuss their request once received unless it is happy to accept the proposal.
- Consideration should be given to allowing the employee to be accompanied by a trade union representative or a work colleague.
- Employers should weigh up the benefits of the request against any adverse impact on the business. Possible outcomes could be:
- compromise agreed; or
- request rejected, on one of the eight specified “business reasons”.
If the request is rejected employees should be advised of the “business reason” for this:
- the burden of additional costs;
- an inability to reorganise work amongst existing staff;
- an inability to recruit additional staff;
- a detrimental impact on performance;
- a detrimental impact on quality;
- detrimental effect on ability to meet customer demand;
- insufficient work for the period the employee proposes to work; and
- a planned structural change to the business.
(Notably, these are the eight business reasons provided for under current legislation.)
- Employees should be advised of the decision in writing together with any right of appeal.
- The consideration process including the right of appeal must be completed within 3 months. If it is going to take longer any extension should be agreed with the employee.
- Employers must ensure that in coming to their decision they do not inadvertently discriminate against an employee.
Employees can only make the request once in a 12 month period.
Possibility of a trial period
Usefully the ACAS guidance suggests that where an employer is unsure about the arrangement requested, instead of rejecting the application, it could agree a temporary arrangement or a trial period. So that there is certainty, this must be communicated in writing.
Employers will be required to consider each application on its own merits. One area of concern is that there is no guidance on how employers will deal with competing applications and accusations of unlawful discrimination when an application is rejected. There is also no provision for prioritisation for those who have caring responsibilities.
Next step for employers
The forthcoming changes provide a useful opportunity for employers to refresh their knowledge and reflect on how they will respond to flexible working applications. A good place to start is to introduce a flexible working policy or review of an existing policy, to ensure that there is clear current guidance for both employees and manager employers. Broader operational issues should also not be overlooked. For example, if home working is introduced there should be a health and safety risk assessment and consideration needs to be given to the issue of data security.
The prospect of more employees seeking a different way of working may appear daunting, particularly for smaller organisations. Employers when deciding how to respond should however not overlook the benefits of allowing staff a better work life balance, which can have a significant and positive effect on attendance, productivity and retention.
For more details about an employee’s right to work flexibly and introducing a Flexible Working Policy please contact:
+44 (0) 1604 871143
This update is for general guidance only and does not constitute definitive advice.