Flexible working from 30 June 2014

From 30 June 2014 all employees with 26 weeks' continuous employment will be able to make a request for flexible working (not just parents of children under 17, or 18 if disabled, and certain carers - as was previously the case).

Eligible employees can request a change to their working hours or times, or a change of location, i.e. home working or a transfer to a different workplace. 

Employers can refuse the request but must rely on one or more of the eight reasons set out in the legislation, which are:

  • the burden of additional costs;
  • detrimental effect on ability to meet customer demands;
  • 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, or
  • planned structural changes.

The new procedure is less prescriptive than previously.  The employee must commence it by making a written request. The employer has a three month period within which to discuss the request with the employee and notify them of the outcome; this decision period can be extended by agreement.

The employer must deal with the application in a reasonable manner and has the right to treat the request as withdrawn if the employee, without good reason, fails to attend an arranged meeting.

Should the employer not deal with the application reasonably, not notify the employee of their decision within the set time, not adhere to the statutory grounds for refusing the application, or base their decision on incorrect facts or falsely treat the application as withdrawn, the employee can make a complaint to the tribunal.

As under the old rules, employees can make only one request in any 12 month period.

ACAS has published guidance on handling flexible working requests in a reasonable manner. One is the statutory code and the other is an ACAS guide which can be obtained from the ACAS website. When deciding complaints brought by employees, tribunals must take the ACAS code into account, where relevant.

The legislation does not provide for trial periods but there is nothing to prevent the parties agreeing one. This may be advantageous to both employer and employee and it puts an employer in a better position if the request is then refused.

If changes are agreed, employers should issue a new contract or a letter and get the employee to sign an acceptance of the new terms so there is no dispute about what was agreed at a later date.

The legislation does not expressly require an employer to allow an appeal but the ACAS code suggests that it would be good practice to do so. If an employer receives a number of requests at the same time from a number of employees, the ACAS guide suggests that the requests should be considered in the order in which they are received or the employer could have a discussion with the employees concerned to see if adjustments or compromise could accommodate several flexible working requests.

If you would like a flow chart setting out the statutory procedure please contact Reggie Lloyd.

Reggie Lloyd
01206 217347
reggie.lloyd@birkettlong.co.uk

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.