As of 30 June 2014, the statutory right to request flexible working extends to all qualifying employees. The current statutory procedure for considering such requests will be removed and employers will instead be required to consider all such requests in a reasonable manner. They will, however, retain the right to refuse requests on business grounds.
The changes come following the introduction of the Children and Families Act 2014, which received Royal Assent in March of this year.
What does it all mean?
It means that the statutory right to request flexible working will be extended to include all employees after 26 weeks’ service with their employer, rather than only those with children under the age of 17 (or 18 if the child is disabled) and certain carers. So once the new rules come into effect, any eligible employee can apply to work flexibly for any reason.
‘Flexible working’ in this context may take various forms, including job sharing, part-time working, or working from home.
Employees will still be restricted to only making one request for flexible working within any 12-month period.
What are my duties as an employer?
Employers will have a statutory duty to deal with requests ‘reasonably’ and within a ‘reasonable time’. A draft Code of Practice has been drawn up by the Advisory, Conciliation and Arbitration Service (ACAS) to assist employers with this new duty.
The draft Code of Practice is accompanied by Guidance. Both can be downloaded from the ACAS website (http://www.acas.org.uk/index.aspx?articleid=1616).
The Guidance details how an employer should handle a request, how to prioritise conflicting requests received at the same time, and how employers can handle temporary changes to working patterns.
It also recommends that employers consider introducing a right to request policy. This, it says, will help to ensure consistency in the handling of requests.
Once an application for variation in contractual terms of employment has been approved by an employer, the new contractual terms become permanent.
What’s our take on all this?
In addition to carers of young children, these changes are likely to be attractive to older employees who are not yet ready for complete retirement but want to work more flexibly, perhaps in order to help out with grandchildren or to pursue outside interests.
If there is a dispute about an employee’s flexible working request and the case goes to an Employment Tribunal, it can order the employer to reconsider the application and make an award, although the penalty for failing to comply with the statutory requirements is relatively low (currently capped at 8 weeks’ pay and to which the statutory cap on a week's pay applies, currently at £464 per week), so it is difficult to predict what impact these changes will have in practice. And a Tribunal cannot question the commercial rationale or business reasons behind an employer's decision to refuse a request. Neither can a Tribunal substitute its own decision as to whether the request should or should not have been granted. This severely restricts the scrutiny to which an employer's decision may be subjected.
However, as seen following the recent decision in the case of The Solicitors Regulation Authority v Mitchell, one real potential risk that employers may face if they fail to handle a request for flexible working properly is that of a discrimination claim, where compensation is uncapped.
Employers are advised to update their employee handbooks to reflect these upcoming changes, following consultation with their employees.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.