Flexible Working Flexes

by McDermott Will & Emery
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With effect from yesterday, 30 June 2014, the right to request flexible working has expanded so that it now applies to any employee with at least 26 weeks’ service. Employers should amend their flexible working policy documents to reflect the changes to the regime and plan in advance how they will deal with a possible increase in the number of requests.

What has happened?

With effect from yesterday, 30 June 2014, the right to request flexible working has expanded so that it now applies to any employee with at least 26 weeks’ service. Employers should amend their flexible working policy documents to reflect the changes to the regime and plan in advance how they will deal with a possible increase in the number of requests.

Has the process for requesting flexible working, and for responding to such a request, changed?

Yes, for the better.

The procedure that applied prior to 30 June 2014 was very prescriptive. The employer had to meet with the employee within 28 days of a request being made, deliver its decision within 14 days of that meeting, and so on.

The revised procedure requires only that the employer tell the employee the outcome of the request within three months of the request being made (which period may be extended by agreement). The same timeframe applies to decisions on appeals.

The strict timetable is replaced by a requirement that the employer deal with the request in a reasonable manner. However, it is inevitable that, when considering what is reasonable, a Tribunal will have an eye on the “old” process, and so it should still be the norm to meet with the employee to discuss the request. ACAS has published useful Guidance which provides that it will be reasonable to allow the employee to be accompanied at that meeting by a work colleague.

Legislation no longer provides for the employee to be given a “sufficient explanation” for the rejection of a request, but it would of course be prudent to do so.

If an employee does not attend two scheduled meetings to discuss his or her request (or appeal) and does not have a satisfactory explanation for not doing so, then the employer may treat the employee’s request as having been withdrawn.

How much has stayed the same?

Apart from the process, most of the regime remains unchanged. For example:

  • There is no change to the way in which an application must be made or the information that it must give.
  • A request may only be rejected on one or more of the same eight reasons: (i) cost, (ii) inability to meet customer demand, (iii) inability to reorganise work among existing staff, (iv) inability to recruit additional staff, (v) impact on quality, (vi) impact on performance, (vii) insufficiency of work during the periods the employee proposes to work or (viii) planned structural changes.
  • Only one request may be made by the same employee within any 12-month period.
  • Only employees may make a request.
  • Following grant of a request, it will still be necessary to confirm the changes in writing, to satisfy section 4 of the Employment Rights Act 1996.

What are the tricky issues?

Trial Periods

The revised legislation still does not expressly provide for trial periods. However, the ACAS Guidance does bless their use in circumstances where such use is an alternative to the employer rejecting the request.

Competing Requests

The fact that the regime is now open to all employees with 26 weeks’ service means that employers may receive more requests. The ACAS Guidance provides some insight into how such competing requests should be handled:

  • Consider requests in the order in which they are received. If you grant a request and then receive another, then the business context will have changed for the purpose of your consideration of the second request.
  • If you cannot approve any more requests because you already have a number of employees working flexibly, then it would be good practice to ask those employees working flexibly if any would be willing to change their arrangements to allow others to be accommodated.
  • If you are dealing with more than one request at a time, your options are (i) to have a discussion with the employees to see if they can adjust their requirements to allow both requests to be granted, or (ii) to have a random selection process, if option (i) does not work and you cannot distinguish between the requests (it is not for the employer to make a value judgment about the most deserving request).

Notwithstanding what ACAS says about resisting making value judgments, employers are of course likely to pay particular attention to a request made by an employee with a protected characteristic, particularly where the request is in some way related to that characteristic.
 
What happens if we get the process wrong?

It remains the case that the maximum award that a Tribunal may make to an employee who complains that the process was dealt with unreasonably is a maximum of eight weeks’ pay, capped (currently) at £464 per week.

However, this amount does not reflect the potential value to an employee of an employer not dealing with his or her flexible working request appropriately. If that can be worked into a discrimination claim or a constructive dismissal claim, then compensation could be much higher.

What steps should we take?

Review your flexible working policy to ensure that it is fit for purpose. You may want to amend the procedural requirements to make them less rigid than they previously had to be and to provide guidelines on how simultaneous requests will be approached.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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