Paul Reeves: Changes to flexible working

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Plans to extend the right to request flexible working to all employees have been put on hold following the slow progress of the Children and Families Bill through Parliament. The Department for Business, Innovation and Skills (BIS) has stated that the new rules on the right to request flexible working will be implemented today 30 June 2014.

Formerly, only employees who had children aged 17 or younger (or 18 or younger where the child is disabled) and those employees who act as carers had the right to request flexible working. In addition to these requirements, in order to be eligible, an employee must have 26 weeks’ continuous service at the date of the request and must not have made a flexible working request within previous twelve months.

It is important to note that an eligible employee only has the right to request flexible working. There is no right to work flexibly. In making a request, eligible employees may request a change to their working hours, times or location from which they carry out the work.

The statutory procedure contained in the Flexible Working (Procedural Requirements) Regulations 2002, set out the steps that both employees and employers must follow. In summary, these include:

  • The employee submitting a written application detailing the proposed changes and setting out how those changes may affect the business
  • Within 28 days of receiving the written request, the employer meets with the employee to discuss the request
  • Within 14 days of the meeting, the employer writes to the employee agreeing to or rejecting the proposal
  • If the proposal is agreed, the employer provides a letter confirming the variation of employee’s working arrangement
  • If the proposal is rejected, the employer provides reasons for rejection and sets out the appeal procedure
  • Any appeal must be made within 14 days of the decision
  • Within 14 days of the appeal being received the employer meets to hear the appeal
  • Within 14 days of the appeal meeting, the employer must give its decision in writing

The new proposals coming into effect today (30 June 2014), extend the right to request flexible working to all employees who meet the qualifying period of service regardless of their personal circumstances.

Employees will still need to meet the same qualifying criteria as currently applied (see above). Employees will no longer need to qualify as a parent or a carer in order to be eligible to request flexible working, but they will need to have the requisite service and not have made a request in the previous twelve months.

In addition the proposal goes further and seeks to abolish the current statutory procedure (see above) and introduce a more informal process of dealing with such requests. It will be up to the individual employer to determine what procedure to follow, although it is most likely that procedures set out in the Employee Handbook or Flexible Working Policy will remain the employer’s preferred procedure, save that they are not bound by the rigid timeframe currently in force for each stage. Although the recommendation under the new proposal is for employers to ensure they respond to employees’ requests in a timely manner, and certainly within three months of receiving the request – coincidentally the same amount of time the current regime would take from commencement to the end of the appeal process.

In addition, requests must be considered objectively and can only be refused if there are genuine business reasons for such refusal. Business reasons may include:

  • additional costs to the business
  • inability to reorganise work among employees
  • inability to recruit additional staff
  • detrimental impact on quality
  • detrimental impact on business’ ability to meet customer demand
  • detrimental impact on an individual’s or business performance
  • insufficient work during the proposed periods of work
  • planned structural changes

The proposals emphasise that any requests for flexible working must be dealt with in a reasonable manner. Care should be exercised to ensure that requests are treated consistently to avoid any potential claims of discrimination or associative discrimination.

Although the new rules attempt to move forward from the statutory procedure and make the process more informal, employers must give careful consideration to a request particularly if the request is rejected. Sadly the onus remains on the employer in the process, when there needs to be more emphasis on the employee planning their request and how it will work with the employer’s business in practice.

The greatest challenge for employers under the proposal is how they will decide between two competing requests: one from an employee requesting the right to work flexibly because of child care reasons and another from an employee who is making the request for a non-child care or carer reason, i.e. lifestyle choice?

The two most important points to remember – right to request flexible working is not a right to flexible working and any change agreed will be a permanent change to an employee’s contract, so if their circumstances change there is no right to go back to their original working arrangement.

Paul Reeves, employment partner at Stephenson Harwood LLP

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  1. Thank you Paul for that helpful summary.

    The challenge you have identified is real and seems to be complicated by the guidance in the draft ACAS code of practice which indicates (paragraph 8) that employers should consider the benefits of any request for the employee as well as the business. This could be taken to mean that the business should make a subjective judgement about the relative merits of competing requests. That would take them into a minefield and it seems to run counter to the purpose of the regulations namely to extend the right to request flexible working arrangements beyond those with caring responsibilities.

    This looks to be ripe for a test case and in the meantime it may be prudent for employers to take requests on a first come first served basis.

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