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
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
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
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,
- 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- Employers may treat the request as having been withdrawn by the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).
The new arrangements will be supported by a statutory code of practice and non-statutory best
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