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Briefing Note

Flexible Working Requests For All

The right to request to work flexibly is being extended to all employees (who have at least 26 weeks’ service) regardless of their parental or caring responsibilities.

From 30 June 2014, the existing prescriptive statutory procedure will be replaced with a new statutory duty on all employers to deal with the requests in a “reasonable manner” and to notify employees of their decision within three months of the request, unless an extension is made.

Who qualifies for the right to request to work flexibly?

  • Requests to work flexibly can only be made by employees.
  • They must have a minimum of 26 weeks’ service on the date they make the application.
  • Only one request can be made in any 12 month period.

Previously, under the old regime of the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 only employees who had responsible for a child under 17 (or 18 if disabled) or an adult who requires care could apply.

How has the procedure changed?

The old rigid regime complete with its strict time limits and prescribed outcomes is being replaced with a more flexible approach that requires employers to act in a “reasonable manner”.

Employers will be able to amend existing or adopt their own HR policies and procedures for considering requests. Employers will also have to comply with a new Acas Code. There are no time limits for the employer to follow, except the employer must notify the employee of its decision (including any decision on appeal) within three months of the request, unless an extension has been agreed.

The new procedure for considering requests

Applications, as before, can only be made to change the hours of work, times of work, or place of work. The scope of changes employees can therefore seek include a request to work part-time (or full-time if already part-time), a move to annualised hours, compressed hours, flexitime, home-working or a job-share.

Applications must be made in writing. There is no prescribed form. The application must be dated, state it is being made under the statutory procedure, set out the change being requested, when the change would take effect, what affect (if any) the change will have on the employer and how it could be dealt with, and the date of any previous application. The Acas Guide adds that employees should make it clear if they are also making an application under the Equality Act 2010, for example, if the request relates to reasonable adjustments in connection with the employee’s disability.

Employers must act in a reasonable manner

The employer must deal with the application in a reasonable manner.  What this means is dealt with in the Acas Code and Guide. It suggests that an employer must act reasonably in the way it makes its decision, not just in the manner in which it handles the application. The following factors apply:

  • There is no requirement to meet with the employee to discuss the request. It can simply be agreed.
  • If, however, the employer is unsure about the request it should meet with the employee to discuss the application and obtain a better understanding of the request and to discuss all issues of concerns or uncertainty.
  • The employee should be allowed to have a companion (a trade union representative or work colleague from the same work location) at any meeting to discuss the application. (This is so even though the Acas Code does not cover this point).
  • Meetings should be held in private and where possible at a time and place convenient to the employee and employer.
  • The employer ‘should consider the request carefully looking at the benefits of the requested changes in working conditions for the employee and the business and weighing these against any adverse business impact of implementing the changes’.
  • If the request appears difficult to agree, the employer should discuss with the employee a compromise arrangement that still provides the employee with the ability to work flexibly.
  • Somewhat stating the obvious, employers should not discriminate unlawfully against the employee, when considering an application. As with the previous scheme, it is important to remember that employers can follow the flexible working regime to the letter but still fall foul of discrimination legislation, for example indirect sex discrimination (see below).

Guidance as HR best practice for dealing with flexible working requests is included in our Employer’s Check List.

The employer’s decision

The employee’s request must be dealt with promptly; this is part of acting in a reasonable manner. The employer must notify its decision to the employee within three months (unless extended by agreement with the employee) of the date of the application.

When can an employer refuse a request?

Under the new regime the grounds on which an employer may refuse a request have not changed. Employers must rely on one or more of the prescribed business grounds. The statutory test is subjective and is satisfied if the employer considers that one of the business grounds applies.

The eight business reasons for rejecting a request are:

  • Burden of additional costs
  • Detrimental impact on quality
  • Inability to recruit additional staff
  • Detrimental impact on performance
  • Inability to reorganise working amongst existing staff
  • Detrimental effect on ability to meet customer demand
  • Lack of work during the periods the employee proposes to work; and
  • Planned structural changes

Does the employee have a right of appeal?

The new procedures do not provide for a mandatory right of appeal against an employer’s refusal to a request. Nevertheless the Acas Code states that: “if you reject the request you should allow your employee to appeal the decision.” It therefore seems likely that the right of appeal will quickly become established practice and part of the process of acting in a reasonable manner.

Acas Code and Guide

The new regime is supported by an Acas Code Handling in a Reasonable Manner Requests to Work Flexibly, which is still in draft form at the moment. Employment tribunals must take the Acas Code into account when considering claims under the statutory scheme.

Additionally there is a ‘best practice’ Acas Guide, ‘Handling Requests to Work Flexibly in a Reasonable Manner: An Acas Guide’.

Bringing a tribunal claim

For employees who are unhappy about a rejection of their flexible working request they can bring a tribunal claim based on the employer dong one or more of the following:

  • failing to deal with the application in a reasonable manner
  • failing to notify the employee of the decision within three months of the application (unless extended)
  • refusing the request for a reason other than one of the prescribed reasons
  • making a decision based on incorrect facts; or
  • wrongly treating the request as withdrawn (related to whether the employee missed one or more meetings).

The claim must be brought within three months of the date on which the employer treats the application as withdrawn or communicates the final decision. The employee also has to pay the tribunal issue fee and a hearing fee which is likely to deter many claims.

Employment tribunal remedies

The tribunal has the power to require the employer to reconsider the employee’s request and/or award the employee compensation of up to 8 weeks’ pay. A week’s pay is capped currently at £464 making the maximum of £3,712.

It appears that whilst the tribunal does not have the power to challenge the commercial validity of the employer’s decision, it will be able to review how the decision was arrived at. Therefore if the tribunal considers that the employer did not act reasonably, it may award compensation or order the employer to review its decision. Either way, as with the old regime the powers of the tribunals are still too weak to be effective as they can only examine the employer’s decision to a limited extent and any compensation award is too low to be a deterrent.

Discrimination claims remain the real risk

The above said, for employers the real risk with a flexible working request lies not in the tribunal sanctions available under the flexible working regime but in discrimination and constructive dismissal claims.

Employers who flout or wrongly refuse a request under the new statutory procedure will continue to run the much higher risk of not being able to successfully defend a discrimination claim, especially for sex or disability discrimination. This is the trap for the unwary or unwise employer. An employer’s failure to deal with a flexible working request in a reasonable manner may well also allow the employee to resign and claim that he or she has been constructively and unfairly dismissed.

What should employers be doing now?

You should put in place or review and update your existing flexible working policy to take account of the increased flexibility that the changes permit. Having an up to date policy will ensure you and your employees know how any request will be handled and it will help minimise the risk of any unwanted employment tribunal claims.

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