Anyone who believes that flexible working is largely limited to working mothers will have their thinking challenged this week, as a new universal right to request flexible working has now been introduced. Sarah Lamont outlines what's changed and highlights some practical steps that employers should consider.
The outgoing law
Although there has never been anything in law to prevent any employee from requesting a change to their working hours, this has been protected as a specific statutory right since 2003 to allow for caring responsibilities. Until 30 June 2014, employers were obliged to consider requests for flexible working from employees who had more than 26 weeks' service, but only if the change was requested for the purpose of undertaking caring responsibilities for children or adults. Furthermore, requests had to be made and considered within a very prescriptive statutory procedure and within set timescales.
The outgoing statutory flexible working regime had been criticised for being overly formal and complex, and was reviewed by the government as part of its 'Consultation on Modern Workplaces'. The response to the consultation was published in November 2012, and the government announced that it would overhaul the current flexible working regime.
The incoming law
With effect from 30 June 2014, the Children and Families Act 2014 made the following changes.
- The right to request flexible working is extended to all employees with 26 weeks' service; not just those with caring responsibilities. So, a request can be made by any employee for any purpose – or even for no purpose at all.
- Employers must deal with applications for flexible working in a 'reasonable' manner, and within 3 months, but there is no longer a prescribed statutory procedure and there is no specific requirement to meet with the employee.
- Employers can, however, still refuse a request if it falls into one (or more) of the eight reasons set out in the legislation, namely:
- 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; or
- planned structural changes.
- Employers may treat the request as having been withdrawn by the employee if, without good reason, the employee fails to attend a meeting arranged to discuss their request and a further meeting rearranged for that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. Similar provisions will apply in respect of a meeting to consider an employee's appeal against the rejection of a request.
As before, employees may make a complaint to an employment tribunal and compensation will be limited to 8 week's pay (subject to the statutory cap, currently £464).
When deciding complaints brought with respect to the statutory scheme, tribunals must take the statutory Acas Code into account when it appears relevant. It is brief - only two pages long - and adopts a 'principles-based approach'.
What does this mean for me?
- As was the case under the previous right to request flexible working, the real concern for employers is likely to be indirect discrimination claims arising from any refusal of requests to accommodate flexible working, as compensation for these claims is unlimited. Claims for reasonable adjustments for disabled employees will also be relevant. In relation to indirect discrimination, employers should be aware that claims may arise not just in relation to female employees wanting to work around childcare commitments, but other strands of discrimination may come into play. For example, older employees wanting to work part time to look after grandchildren or employees wanting to take time off to attend a place of worship during the week.
- Whilst the new procedural requirements are less onerous for employers, it will remain good practice to meet with employees in a timely manner, and maintain a clear paper trail.
- As is currently the case, you will need well drafted flexible working policies and procedures. You may wish to review and amend your current documentation, or start afresh.
- Employers will have to consider how to deal with competing requests for flexible working. Acas suggests using a 'first come, first served' approach. It may, however, be tempting to make value judgments about the 'worthiness' of requests made at the same time – for example, should a flexible working request for the purpose of looking after a disabled partner be given priority over someone who puts in a request so that they can play more golf? The Acas guidance warns against making 'value judgments', and suggests that business needs should be the driver for decisions.
- Note that, unless any agreement is made to the contrary, any changes to an employee's contract made pursuant to the new flexible arrangements will be permanent. You may wish to consider trial periods and / or specific review dates, to see how any new arrangements are working.
- Finally, note that the new rules apply only to employees – therefore other types of worker, such as agency workers and independent contractors are excluded.
We have already been assisting clients with making the new flexible working regime work for them, so please do contact me, or another member of the Bevan Brittan Employment Team, if you would like to discuss how we can assist with matters such as documentation drafting / review, implementation of the changes and bespoke training.