On 30 June 2014, the law relating to an employee’s right to make a flexible working request is changing. With a week to go, are you up to speed on the new law?
The main thrust of the law on flexible working requests remains the same: employees have the right to make a request to their employer for a change to their working pattern. This may be a change of hours, a reduction in hours, a change or reduction of working days, or a change of workplace. Where an employee makes such a request, an employer must consider it and decide whether or not to agree to the request. If the request is granted, the employee’s working pattern is permanently changed.
Changes
Whilst the underlying principle of the right to request flexible working does not change, the category of people who can make requests and the way in which requests are dealt with will change for all requests made on or after 30 June 2014.
Firstly, the category of employees who can make a flexible working request is being extended. Currently, the right only applies to employees who are caring for children under 17 (18 if the child is disabled) or adults who are in need of care. From 30 June 2014, any employee with 26 weeks’ continuous service can make a flexible working request. The right to request flexible working still only applies to employees – agency workers (for instance) have no right to make such a request.
Secondly, the procedure for dealing with a flexible working request will change. As you may be aware, under the current law there is a strict procedure (with strict time limits) which must be followed to the letter once a request has been made. That procedure will be abolished, and will be replaced with a far less prescriptive procedure and a requirement that employers must deal with any request in a “reasonable” manner. Instead of the strict time-limits and meeting time-table under the current regime, employers will have a 3 month decision period to consider the request, discuss it with the employee, and notify them of the outcome.
So how does it work?
The starting point for employees is the same – they make a flexible working request, which must be dated and in writing. The application must state that it is made under the statutory procedure, and specify the changes the employee seeks and the effect of those changes. The request must also state whether the employee has previously made a flexible working request; the law remains unchanged in that an employee can make only 1 request in any 12 month period.
The employer must then deal with the request in a “reasonable manner”. Whilst the law does not specify what dealing with the request in a “reasonable manner” entails, ACAS is in the process of preparing a Code of Practice which suggests the procedure an employer should follow. That Code of Practice will be a statutory code, meaning that Employment Tribunals must consider it when ruling on any claim brought in relation to any flexible working request. Employers would therefore be well advised to follow the ACAS Code of Practice in considering any request. The ACAS Code is currently in draft form, but will be available in its final form shortly. ACAS has also published “good practice guidance” which sets out general principles for dealing with requests (which will not have the same statutory effect as the Code of Practice).
The draft ACAS Code of Practice sets out that employers should hold a meeting with the employee, at which they have the right to be accompanied by a colleague, to discuss the request. Following the meeting, the employer should inform the employee of its decision in writing, and offer the employee the right to appeal that decision.
As with the current law, employers can reject a request for one of 8 reasons, namely: the burden of additional costs; the detrimental effect on ability to meet customer demand; inability to reorganise work amongst existing staff; inability to recruit additional staff; detrimental impact on quality; detrimental impact on performance; insufficient work during the proposed working period; and planned structural changes.
All flexible working requests, including any appeal, must be considered and decided on by the employer within 3 months of the employee raising the request – known from 30 June 2014 as the “decision period”. The employee and the employer can agree to extend the 3 month decision period.
In a change to the law, employers may now treat a flexible working request as being withdrawn if, without good reason, the employee fails to attend a meeting (or an appeal meeting) to discuss their request, and a further rearranged meeting.
So what do you need to do?
If you have a flexible working policy in place, update it. If you are an Employmentor subscriber, log onto the Employmentor website to download a new flexible working policy which takes account of the new law.
Communicate to your employees that you have changed your policy to bring it in line with the new law. If you have procedures in place for changing polices (e.g. consulting with a staff group or a union), make sure you follow them.
Ensure that you are familiar with the new law in case you receive a flexible working request. We are currently preparing a suite of new letters and flowcharts to assist you when you do receive a flexible working request under the new law. These will be on the Employmentor website in time for the new law coming into effect on 30 June 2014.
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Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.
