The right to request flexible working is currently linked to carer responsibilities, including parents of young children, disabled children and dependant adults. Many employers will have received staff requests for flexible working in this context before and will, therefore, be familiar with the current statutory procedure for handling flexible working requests.
For those who are not, this is simply the right for employees to request changes to their working hours, working times or location. If granted, such changes become permanent amendments to the terms and conditions of their employment. This is often associated with requests to work part-time following maternity leave, but is certainly not limited to that scenario.
The current regime includes a highly prescriptive and much criticised statutory procedure, which employers must follow when handling the request, including strict timescales for meetings and appeals.
The main changes to the law
The changes which take effect from June 30 will have the following main implications:
- All employees will have a statutory right to request flexible working for any reason. The only eligibility criteria are that they must have 26 weeks’ continuous employment at the date they make the request and must not have made another request within the last 12 months.
- The strict statutory procedure will be abolished and replaced with a requirement that employers consider flexible working requests in a “reasonable manner”. This means that although the right has been greatly extended, the Government have attempted to balance this with a more flexible employer-friendly process.
The requirement to consider requests in a “reasonable manner” appears at first to be vague and difficult to follow, but Acas has come to the aide of employers by producing a code of practice on Handling in a Reasonable Manner Requests to Work Flexibly and an accompanying guide, which can be accessed here.
Although the process outlined in the code is not statutory it will be taken into account by employment tribunals when determining whether or not an employer has dealt with a flexible working request in a reasonable manner and therefore whether it should have to pay compensation as a result of unreasonable handling of the request.
How to handle a flexible working request
Full details can be found within the code itself but in summary the process for handling flexible working requests should be:
- Upon receipt of a written request, the employer should arrange to meet with the employee to discuss it as soon as possible. Staff have the right to be accompanied at the meeting.
- If the employer intends to approve the request without the need for a meeting with the employee then a meeting is not necessary.
- All requests should be considered in a non-discriminatory way and can only be rejected for one or more of eight specific business reasons (which remain unchanged from the previous legislation): burden of additional costs; inability to reorganise work among existing staff; inability to recruit additional staff; detrimental impact on quality; detrimental impact on performance; detrimental effect on ability to meet customer demand; insufficient work for the periods the employee proposes to work; a planned structural change to your business.
- Employers must inform employees of the decision in writing as soon as possible. If the request is accepted (even with modifications) then the employer should discuss when and how the changes will be implemented.
- If the employer rejects the request they must provide reasoning in writing and allow the employee the right to appeal. Any appeal meeting should also give the staff member the right to be accompanied.
- The overall time period from receipt of the request to completion of the process (including any appeal) must be no longer than three months, unless an extension has been agreed by the employee.
What can you do to prepare for the changes?
If you have an existing written policy on flexible working then this will become out of date on 30 June 2014. If you do not change it then you may be contractually bound to stick to the more prescriptive timescales and deadlines contained within it. Therefore a complete overhaul of your flexible working procedure and any HR templates should be conducted as soon as possible with a view to implementing the changes on or shortly after 30 June.
If you do not already have a written policy then it is recommended that you put one in place. Employers are required to advise their employees of how to make a flexible working request and the information that must be provided. To ensure consistency and compliance with this obligation this information would be best set out within a formal written policy, which should also outline the process that will be followed, the right to be accompanied and the timescales involved.
Many employers find that a flexible workforce suits their business and creates a happy and trusting work environment. In fact, many have already extended the right to request flexible working to all employees, before the forthcoming change in the law. This may allow employers to retain staff that otherwise might have left due to family commitments, voluntary work or other interests. However, it is important to remember that the legislation does not currently, nor will it, create a right to flexible working, rather it is a right to have the request considered.
Nina Robinson is head of legal services at HR Legal Service