Right to request flexible working extended in UK

June.09.2014

From 30 June 2014 employees with 26 weeks' continuous service who wish to work flexibly for any reason may make an application which their employer must consider in a "reasonable" manner. What does this entail and what can employers do to be ready?

As all employers will know, the right to request flexible working patterns (i.e. any way of working which falls outside the employer's norm) is currently held by employees who are parents of a child under 17 (or a disabled child under 18) and employees who are carers for adults. There is a statutory procedure by which such requests must be considered.

As of 30 June 2014, all this changes and any employee with 26 weeks' continuous service can make a request to work flexibly which their employer must consider in a "reasonable" manner.

A positive impact on the workforce?

The government's aim in extending the right to request flexible working to all employees and not just parents and carers is to create a shift in attitude. Rather than viewing flexible working as an option for care-givers (who tend to be women), the government wants to create an environment where both men and women work flexibly for the benefit of their families, and where employers support all of their employees to achieve the ever elusive “work/life balance”.

Most employers will be up to speed on the potential benefits of allowing employees to work from home (be this on an ad hoc or agreed basis); e.g. reduced overheads and greater productivity (in some cases), but the expectation around allowing this and other flexible working patterns (for example, reducing the number of days worked, job sharing, compressed hours and late/early start and/or finish times) to become more prominent is that employers will reap the benefits, including:

  • a reduction in absences – sickness or otherwise;
  • an increase in efficiency and productivity;
  • an increase in job satisfaction and staff morale;
  • a reduction in staff turnover; and
  • an attractive policy and means by which to attract new employees.

Bearing the above in mind, employers may wish to go one step further and positively promote the new right to request flexible working amongst their employees. There is, however, no express obligation to notify staff of the changes in the law.

What to do when you receive a request

If and when you receive a request on or after 30 June 2014 there are two key points to remember in ensuring you are dealing with it reasonably:

  1. the time frame in which you respond (bearing in mind the deadline); and
  2. the factors you take into account when making your decision.

The statutory procedure currently in force which has mandated deadlines for responding to the request and any appeal is to be withdrawn and the new regime is that employers must consider and determine a request within a period of 3 months from its receipt. ACAS have published guidance on how to handle requests to work flexibly in a reasonable manner, available here, and it states that on receipt of a request an employer should arrange to meet with the employee ASAP. ACAS also recommend that employers allow employees to be accompanied to meetings by a trade union representative or a colleague, but there is no statutory right.

The existing statutory business grounds that enable an employer to reject a request will remain the same as under the current scheme. These are listed below and they are the only grounds upon which an employer may reject a request:

  1. the burden of additional costs;
  2. detrimental effect on ability to meet customer demand;
  3. inability to re-organise work among existing staff;
  4. inability to recruit additional staff;
  5. detrimental impact on quality;
  6. detrimental impact on performance;
  7. insufficiency of work during the periods the employee proposes to work; and
  8. planned structural changes.

In order to reasonably refuse a request, at least one of the above reasons must apply. It is recommended that employers give thorough and objective consideration to all requests, and it would beneficial for the employer to actively engage with the employee (and their manager and/or team, if applicable) before rejecting a request. This is where a discussion meeting will be useful. Requests should not be given cursory consideration only or rejected out of hand.

While an employee has the right to make one request only in a 12 month period, employers should be mindful of rejecting requests on this basis alone and should bear in mind possible discrimination and/or constructive dismissal complaints that may arise (see below).

Practical steps and potential pitfalls

So what should employers do to be ready for 30 June 2014? The key point is to ensure that HR and all managers (to whom such a request could be made) are aware of the fact that anyone can now make such a request. Ideally employers would have an updated policy in place, but it is not essential and the most important point to note is that because the changes are statutory they will take effect regardless and operate by sitting alongside and/or overriding any pre-existing policy. Employers should update their policies when they are able and in the meantime should consider developing a consistent approach to such requests, as this will help avoid confusion and complaints.

Decisions should be recorded in writing. If the request is refused, it is important to create a document trail in case the employee appeals and/or makes an employment tribunal claim. If the request is accepted then this will likely constitute a variation to the employee's terms and conditions of employment and it will be important to document this. It may often be sensible to initiate the change on a trial basis, with clearly defined points of review and what happens if the trial is unsuccessful agreed from the outset.

A potential pitfall likely to affect large organisations in particular is the receipt of competing requests and/or existing flexible working arrangements for parents and carers coming under increasing pressure as a result of new requests. So what should employers do in these circumstances? Firstly, employers should read and become familiar with the ACAS guide (see link above). Employment tribunals will have recourse to this guide when dealing with any complaint regarding flexible working and it is a useful starting point. Secondly, employers should not underestimate the utility of open discussion and engagement with various team members. Employees are likely to want something rather than nothing, so if the employer simply can't accommodate both requests in full, it should aim to compromise. The watchword is "reasonable" and employers must bear this in mind at all times.

Breaches of the flexible working rules can lead to a claim from an employee and penalties range from 2 to 8 weeks' pay (the current statutory limit on a week’s pay is £464). But, in addition to the practical niggles that will be drawn out as employers seek to get this new procedure up and running, it is important to remember the bigger risks the employer faces when dealing with a flexible working request:

  • the possibility of an employee making a discrimination claim;
  • a constructive dismissal claim;
  • losing a valued employee and having to recruit a new one; and/or
  • the impact on staff morale in refusing a request.

Awards of damages for discrimination in the employment tribunals are uncapped, and the potential risks associated with rejecting any flexible working request should be carefully considered in light of the employee's protected characteristics. This is yet another reason why it is useful for an employer to be fully informed of the motivation behind each individual’s request.

Further change to come

The extension of the flexible working regime should not be viewed in isolation. A further government initiative to modernise the UK workforce is hot on its heels: shared parental leave is due to come into effect on 5 April 2015.

Other than the 2 weeks' compulsory maternity leave, a new mother will be able to notify her employer that she wishes to bring her maternity leave to an end early, and take up shared parental leave instead. The entitlement to maternity leave and pay will stay the same (at 52 weeks’ leave with 39 weeks paid) and the mother can share this entitlement with the father.

There will be more detail to come on these changes later this year, but in the meantime employers should begin to consider the likely impact on their policies and procedures and how they will manage these changes in practice.​