Government reforms (1): True flexibility is here (nearly!)…

flexible-working-250On 30 June 2014, the right to request flexible working will be extended to all employees with at least 26 weeks’ continuous service. Further, the current statutory procedure for handling flexible working requests is being replaced on that date with the less bureaucratic requirement that employers handle requests in “a reasonable manner”.

Q. Is this a right to work flexibly or just to request it?

A. This is not an absolute right to work flexibly. Employees only have the right to request to work flexibly. However, once such request has been made, organisations are obliged to handle such requests in a “reasonable manner” or risk a Tribunal claim.

Q. What does handling requests in a “reasonable manner” involve?

A. To help answer this question ACAS has put together a new, short, statutory Code of Practice (currently in draft) available here. ACAS anticipates that employers will continue to deal with requests in a very similar way to the statutory process that is currently in place, but without the rigid timescales we have now – except that the process should take no longer than three months from the date of the application, unless an extension is agreed. The Code will be taken into account by Tribunals when considering relevant cases, although it is not, itself, legally enforceable.

ACAS has also published some good practice guidance available here which gives further detail on how to handle requests in the future.

For further detail on this draft Code of Practice and good practice guidance please see our February Newsletter Government reforms (1): Flexible working.

Q. What types of flexible working may an employee request?

A. Flexible working takes many forms and these are all covered by the right to request. For example:

  • flexi-time;
  • annualised hours (hours are worked out over a year);
  • compressed hours (working agreed hours over fewer days);
  • staggered hours (different starting, break and finishing times);
  • job sharing;
  • working from home; and
  • part time.

Q. When can an organisation refuse a request?

A. When considering a request, organisations will now be required to balance the benefits to the employee and your business against the “adverse business impact” of making the necessary changes. However ultimately, as it is currently, a request can be refused only where it is on one of the following business grounds:

  • 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; and/or
  • planned structural changes.

Q. What should we be doing to prepare for this?

A. It’s only one month before flexibility is extended to all, so, if you haven’t already, do review your current flexible working policies and procedures in light of these changes to check that they are ‘fit for purpose’:

  • flexible working policies will need to reflect the fact that all employees, not just those with caring responsibilities and those with children under a certain age, will be able to make requests provided they have at least 26 weeks’ continuous service; and
  • if your flexible working procedure reflects the current, more prescriptive regime, you may wish to amend it to allow for the more flexible “principles-based” approach taken under the Code.

Employers may well also wish to consider providing training for managers to ensure requests are dealt with consistently across the business. It is essential for employers to develop a consistent approach across a workforce, so that all requests are treated fairly, or risk an increased exposure to claims.

The ACAS good practice guidance gives some helpful advice on this. In summary, there will be greater scope for competing but inconsistent flexible working requests (one, say, for family reasons and the other on religious grounds) and this will require careful management by employers.   For example, a manager who is deciding the outcome of a request from an employee to work from home three days per week for particular, non-childcare related reasons should bear in mind both:

(i)         the outcome of any past request for similar reasons; and/or
(ii)        any future likely request.

If there is a different outcome to similar requests from employees of, for example, a different sex, then an employee whose request is denied may claim that the decision is based on his or her sex and therefore potentially discriminatory.

While the maximum penalty for an employer’s failure to follow the statutory procedure is eight weeks’ pay, capped at the statutory maximum, there is no limit to the compensation that can be awarded in a discrimination claim.

If you are interested in assistance in reviewing your flexible working policies and procedures and/or with training please do contact Luke Menzies on or a member of the team.