Flexible working requests - all change or more of the same?

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This week the Government published the Flexible Working Regulations 2014 which come into force on 30 June this year.  The Regulations introduce amendments to the right to request flexible working. 

The main changes to the flexible working regime from 30 June will be that:

  • the right is no longer limited to employees with children under the age 17 (18 if the child is disabled).  All employees with 26 weeks' service will be entitled to make a request for flexible working; and
  • The existing process, with fairly rigid time limits for responding to a request, holding meetings, giving decisions etc is being replaced with a less onerous process of an obligation on the employer to consider the request and notify the employee of the outcome within a 3 month period.

ACAS has produced a draft Code of Practice which will come into force at the same time as the Regulations, together with a Best Practice Guide.  Both of these are available at www.acas.org.uk

We summarise the key points relating to the new regime below:

  • The right to request flexible working is only available to employees, so agency workers, self-employed contractors or consultants are not entitled to make a request. 
  • Employees must also have 26 weeks' continuous service at the date they make their request and not have made a request within the previous 12 month period.
  • There is no change to the scope of a request for flexible working, so whilst the majority of requests will involve a request to work different days, in particular reduced hours, there is nothing in theory to stop an employee making a request to work an increased number of hours.

Whilst the changes will have some impact on how employers should handle requests, they won't significantly alter some of the most important practical issues for employers.  Requests will still have to be made in writing and set out details of the proposed change that the employee would like the employer to consider.  A request should also set out what effect the employee considers that the change may have on the employer as well as how this effect might be dealt with. 

Employers will have to consider requests properly and although there is no formal obligation to have a meeting with the employee to discuss the request, best practice suggests that a meeting should take place unless the employer is prepared to grant the request without a meeting. 

However, if the employer considers that it may wish to refuse the request the reason for refusal must still clearly fall within one or more of the limited grounds set out in the Employment Rights Act 1996. 

If a employer fails to consider a request reasonably and give a decision within the 3 month time period there is no change in the potential liability in an Employment Tribunal claim for breach of the flexible working right (up to 8 weeks' pay).  More importantly, the same risks arise of potential discrimination claims for refusing any requests, where the refusal cannot be objectively justified. 

One potentially significant consequence of the extension of the right to request flexible working, however, is the prospect of more discrimination claims to arise as a result.  Under the existing regime, it is not uncommon for a refusal of an employee's request for flexible working to give rise to a complaint of indirect sex discrimination.  This is due to the fact that flexible working requests are currently limited to employees who have young children, and requests are typically made by female employees who wish to change their working pattern due to childcare.  The potential for indirect sex discrimination claims in this scenario is well established. 

However, under the new regime, requests could be made for a number of reasons, which could include, for example a desire to reduce working hours as part of a planned transition towards retirement or to look after an elderly relative.  In these circumstances it is not beyond the realms of possibility that age discrimination claims will arise.

Employers can best protect themselves against the risk of such claims arising by:

  1. giving proper consideration to requests;
  2. adopting a "can do" approach where possible;
  3. considering using trial periods to see whether requested working arrangements are feasible or not; and
  4. where the employer doesn't believe the request can be accommodated, ensuring that any refusal falls into the limited grounds set out in the legislation and can be supported by objective documentary evidence.

If you are an employee who is considering making a flexible working request, or a employer which has received such a request and doesn't know how to respond to it we would be happy to help.  Please contact paulball@3volution.co.uk.