From 30th June 2014, the right to request flexible working under the statutory scheme changes. Gone is the limit of the right to those with childcare or caring responsibilities, now all employees – provided they are eligible – will be able to request to work flexibly. We report on these new changes and new ACAS guidance and ask – just how flexible is your business?
Extending the Right
From 30 June 2014, employees with at least 26 weeks' continuous employment will be able to make a request for flexible working under the statutory scheme for any reason. The procedure is initiated by the employee formally putting a request in writing setting out the reason for it and explaining, if relevant, if the request in being made in relation to the Equality Act 2010. Only one request may be made within 12 months. Employees and employers may continue to deal with informal flexible working requests outside of the statutory procedure.
Dealing with Requests in a ‘Reasonable Manner’
Gone is the previous prescriptive process where meetings had to be held within 28 days of receiving letters. Now the employer must deal with requests in a ‘reasonable manner’ bearing in mind an overall time limit of 3 months in which to deal with a request from receipt to appeal (which may be extended with the agreement of the employee).
Refusing a Request
The right is a right to request to work flexibly, not a right to work flexibly. The employer can still refuse a request after giving it due consideration; however, rejection can only be for one (or more) of the eight reasons set out in the legislation. These are:
- The burden of additional costs
- Detrimental effect on ability to meet customer demandInability 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 changes
The employer may treat the request as having been withdrawn by the employee if, without good reason, the employee fails to attend a meeting arranged to discuss their request and a further meeting rearranged for that purpose.
ACAS Code and Guidance
ACAS have produced a Statutory Code of Practice – which tribunals have to take into account in claims concerning breaches of the statutory procedure. This can be found here: http://www.acas.org.uk/media/pdf/f/e/Code-of-Practice-on-handling-in-a-reasonable-manner-requests-to-work-flexibly.pdf
ACAS have also produced a Guide for employers handling flexible working requests – this can be found here: http://www.acas.org.uk/media/pdf/1/a/The-right-to-request-flexible-working-the-Acas-guide.pdf
The Guide is a useful document and is worth a look, particularly, if your business has yet to manage a flexible working request. It gives useful guidance as to what to do if the employer receives more than one request in a business area and how to conduct flexible working meetings.
What should employers do?
Check your flexible working policies – do they need updating? Would your organisation benefit form having a flexible working procedure? Although the process of dealing with a flexible working request has lost the prescriptive deadlines, having a process is still preferable so that both the employee and the business know what to expect and what steps will be taken.
Many employers may find there is no great rush from staff to work flexibly. Remember that reduced hours still means reduced pay so for many employees, reducing their hours may not be attractive. However, employers should also consider the business case for rejecting a request to avoid allegations of discrimination. For example, if a request is made from an employee because they are suffering from a disability and the request is rejected (even on a business ground); the employer could fall foul of its right to make a reasonable adjustment under the Equality Act 2010.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.