Flexible working - be more flexible
The 30 June 2014 saw the introduction of the right to request flexible working be extended to all employees with over 26 weeks’ service under the Flexible Working Regulations 2014. A likely outcome from this change in the law, is that more employees will now qualify and will subsequently take up the right to request the right to work flexibly, for example, working from home or part-time working, flexi-time, compressed hours or job sharing.
So how should employers deal with this? What is the new statutory process for dealing with flexible working requests and what are the business grounds on which an employer can rely to reject requests without the risk of a claim being brought?
Change to Request Procedure
Under the old legislation, any eligible employee (previously limited to only employees who had children under 17 (or 18 if disabled) and certain carers), who submitted a request for flexible working had to be dealt with by the employer following a strict statutory procedure. This included prescribed time limits of when the request had to be dealt with. Under the old law, the employer was required to arrange a meeting with the employee, within 28 days of receiving the application to discuss the request and then notify the employee within 14 days of their decision from of the date of the meeting.
However under the new regime, the time limits have been replaced with a much more flexible and achievable timeframe for the employer to notify the employee of the decision. Now, the employer must notify the employee of the decision within three months of the application date. This time period can be further extended by agreement between the parties. This gives both the employer and the employee more flexibility regarding the procedure in order to reach a mutual outcome.
An employee can still only make one request (which must be in writing) in any 12 month period and any such request can relate to an employee’s:
- hours of work;
- times when they are required to work; and
- place they work
An employer must then decide whether to accept or reject the request. An employer can only reject the request based on one or more of the ‘statutory’ permitted reasons of which there are eight (there is no change to the old law here):
- 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
- Planned structural changes.
Consequences of failing to deal with a request…
An employee will be able to bring a tribunal claim in relation to their request for flexible working if the employer has:
- not dealt with the request in a reasonable manner
- fails to rely on one of the statutory grounds when refusing the application
- bases the decision on incorrect facts
- wrongly treated the request as withdrawn
- not made the decision in time
Paul Chamberlain is a lawyer at Brabners Law firm, writing on behalf of Meridian Business Support