Flexible working for all was implemented on 30 June 2014. Previously it was only available to women with children and carers, now all employees with 26 weeks continuous service can make a request. Many employers may be panicking at this prospect but there is no need as any request can be turned down for business reasons. In this blog I provide a guide to the new flexible working regulations.
There are quite a few changes to the procedure for making such a request, with the old, prescriptive, statutory regime being replaced by a “requirement to deal with the request in a reasonable manner”. This revised approach is reflected in a new ACAS Code.
The basic right to request flexible work is unchanged. Employees can still make up to one written request every year, which the employer can refuse on any of the existing eight business grounds. The maximum compensation for a failure to comply with the new legislation remains at eight weeks’ pay, with a week’s pay currently capped at £464 per week (2014).
Any request must now be dealt with quickly and within a three month time scale, at the end of which the employer must notify the employee of its decision. The ACAS Code recommends that employers should talk to an employee privately after receiving a written request, allowing employees to be accompanied at any discussion, then consider the request carefully before informing the employee in writing of any decision. The employer should then discuss with the employee how and when the changes might best be implemented or allow an appeal.
Although there is no requirement to allow an appeal, the ACAS Code suggests that employees should be allowed to appeal against a rejection. The appeal should be concluded, if possible, within the three month period. If more time is needed for any reason, a longer period should be agreed with the requesting employee.
The employee must make a written application which should also:
- state that it is an application made under the statutory provisions;
– specify the change that the employee is seeking and when they wish the change to take effect; and
– explain what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with.
It might be beneficial for an employer to draft a standard template to accompany a revised policy on flexible working.
An employer can treat a request as withdrawn when the employee, without good reason, has failed to attend both the first meeting arranged by the employer to discuss the employee’s request or appeal and the next meeting arranged for that purpose. The ACAS Guide suggests that the employer should find out and consider the reasons for the employee failing to attend both meetings before reaching any decision to treat their request as withdrawn. Employers must notify the employee of their decision.
Employers retain the right to refuse a request to work flexibly on the existing statutory grounds, which include cost; quality; performance; insufficiency of work during the periods the employee proposes to work; and planned structural changes. Although neither the Code nor the Guidance require it, employers should not only specify which of the statutory reasons applies when refusing a request, but also provide sufficient explanation as to why that reason applies. The Guidance gives examples of each of the business reasons.
Employers should also:
- Ensure any agreement to change employment terms is recorded in writing;
- Be very clear about what is being expected of the employee who will be working flexibly. Trial periods can be used if an employer is unsure if the flexible working may not work.
- Review current policies and procedures and amend in the light of the current changes.
All requests should be treated fairly and consistently to avoid discrimination. Keeping written records is essential.