Flexible Working

From 30^th June 2014, the law on the right to request flexible working fundamentally changed. Previously, only employees with children under 17, those with disabled children under 18, and those who are carers, have the right to request flexible working. From 30^th June 2014 however, this right has been extended to all employees who have 26 weeks’ service, irrespective of the reason for the request.

The new statutory scheme is supported by an ACAS Code of Practice and an ACAS guide. When deciding complaints in respect of flexible working, Tribunals are required to take into account the ACAS code when relevant.

The old procedure was criticised as being overly complicated, and this has been replaced with the requirement that employers deal with requests in a ‘reasonable manner’ rather than through a prescribed procedure.

What should an employer do when presented with a request for flexible working?

A request can only be made by an employee – agency workers are specifically excluded. The request must be in writing, and the employee must have 26 weeks’ continuous employment at the date the request is made. An employee can only make one formal request in any 12 month period. The employer then has three months in which to consider its decision and notify the employee of the outcome.

There is no statutory definition of what constitutes dealing with a request in a reasonable manner. The ACAS guide provides recommendations as to how an employer should deal with a request. These are in reality, practical and common sense suggestions, and include for example: discussing the request with the employee, allowing the employee to be accompanied to any meetings, and balancing the benefits to the company and the employee in agreeing to the request, against any adverse impact that granting the request may cause.

Under the new law, as with the old legislation, an employer is still only able to reject a flexible working request based on one or more of the eight specified statutory grounds, which are as follows:

•  The burden of additional costs.
•  Detrimental effect on ability to meet customer demand.
•  Inability 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 structural changes.

Although the legislation does not require an employer to offer a right of appeal once a decision has been made, the ACAS Code suggests that this would be good practice.

What are the consequences for failing to follow the new legislation?

Any claim must be brought within 3 months of the date on which the application is treated as withdrawn, or the final decision is communicated.

An employee who has made an application under the statutory procedure may only bring a claim on limited grounds, including the following:

•  The employer failed to deal with their application in a reasonable manner.
•  The employer failed to notify them of the decision on their application within the decision period.
•  The employer rejected the application for a reason other than one of the statutory grounds.
•  The employers decision to reject the application was based on incorrect facts.

A Tribunal cannot substitute its own decision as to whether or not the request should have been granted, nor can it question the employer’s business rationale for refusing a request. These limitations severely restrict the scope of the Tribunal’s ability to question an employer’s decision, and essentially, the tribunal’s role is restricted to:

•  Reviewing the procedure followed by the employer.
•  Considering whether the request was taken seriously.
•  Considering whether the decision was based on correct facts.
•  Considering whether the reason given falls within the permitted grounds

If a Tribunal finds in favour of an employee, it can order the employer to reconsider the application, or it may award compensation up to a maximum of eight weeks’ pay.

 What is the importance of laws regarding discrimination?

In considering requests for flexible working, employers must be mindful of the laws in respect of discrimination, with sex and disability discrimination particularly relevant. There are very few flexible working claims that are not also been accompanied by a claim for sex discrimination, and while claims under the flexible working legislation are limited to 8 weeks’ pay, there is no limit on compensation in respect of claims for discrimination

What should an employer do to prepare?

It is advisable to have a clear written flexible working policy, which will ensure consistency. Other policies, for example in respect of home working, should also be reviewed.