New Flexible Working Regime: Open To All

New Flexible Working Regime

Until  today, 30th June 2014, only those employees who had caring responsibilities could make a request for flexible working. However from today all employees can make a request.

What is the right?

An eligible employee can request to work flexibly. This covers a wide range of working patterns including:

  1.  a change to the hours that they work;
  2. a change to the times that they are required to work; or
  3. a change to their place of work (as between their home and any of its employer’s workplaces).

Who is eligible?

All employees who have 26 weeks’ continuous employment with their employer will have the right to request flexible working regardless of caring responsibilities. For example, employees may request to work flexibly alongside a further education course, or in order to combine working with helping to care for grandchildren. Employees may even request to work flexibly simply in order to spend less time at work.

How does an employee make a request?

If an employee does make a request for flexible working, the employee must submit a written application that must:

  1. state it is an application for flexible working;
  2. specify the change that the employee is seeking and when they wish the change to take effect; and
  3. explain what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with.

How should an employer deal with a request?

An employer who receives a flexible working request under the statutory scheme must deal with it in a reasonable manner. An employer has a 3 month decision period (which can be extended by agreement) within which to consider the request, discuss it with the employee (if appropriate) and notify the employee of the outcome. The employer should consider the new working pattern requested by the employee before meeting them to discuss it. Any potential business issues should be identified, together with ways to mitigate them. This may involve discussing the proposals with the employee's manager and, if relevant, other colleagues. Alternative ways to meet the employee's objectives should be considered if the proposed working pattern cannot be accommodated for sound business reasons. If the employer comes to the meeting showing that they have considered the request seriously it is more likely that the employee will appreciate that their approach is genuine and feel that engaging in discussions about alternatives, where these are possible, may be productive. The employer should also remember that in answering the request it may be necessary to consider the position under the Equality Act 2010 as well. If the response cannot be objectively justified then the fact that the refusal technically conforms to the requirements of the flexible working legislation will not prevent an aggrieved employee from succeeding in a claim for sex discrimination.

An employer can still only refuse a request for one (or more) of the eight reasons set out in the legislation:

  1.  the burden of additional costs;
  2.  detrimental effect on ability to meet customer demand;
  3. inability to reorganise work among existing staff;
  4. inability to recruit additional staff;
  5. detrimental impact on quality;
  6. detrimental impact on performance;
  7. insufficiency of work during the periods the employee proposes to work; or
  8. planned structural changes.

An employer may treat the request as having been withdrawn by the employee if, without good reason, the employee fails to attend a meeting arranged to discuss their request and a further meeting rearranged for that purpose.

Employers should aim to ensure that flexible working requests are recorded, and preferably processed, in a way that ensures that decisions are made consistently. For larger organisations with a centralised HR function, HR should be involved in ensuring that decisions are considered consistently and that the basis of rejection of any request is also consistent with previous decisions. Where inconsistent decisions are made the employer should explain the inconsistency (for example on the basis that the organisational capacity for flexible working has been reached and that to grant any further requests would undermine the business). This is particularly important where the applicant is a different sex from those whose requests have previously been granted, or may be able to rely on some other discriminatory distinction between themselves and previous, successful, applicants.

Flexible working policies

While the statutory procedure is now far less prescriptive, employers should make sure that they have written procedures in place to ensure that a request is considered promptly and in a reasonable manner and that the employee is notified of the outcome within the three-month decision period. It therefore remains important that, when a flexible working request is received, the employer has a procedure in place to ensure that arrangements are made to meet with the employee, to consider the request, to advise the employee of the outcome and to allow them to appeal where appropriate. The employer will also need to be ready to deal with those cases where it will not be possible to make a final decision within the decision period when it will be necessary to explain the situation to the employee and to agree (and preferably document) an extension for the procedure to be concluded. Those responsible for operating the procedure should be trained.

When can an employee complain to an employment tribunal?

An employee can complain to an employment  tribunal if an employer:

  •  fails to deal with their application in a reasonable manner;
  •  fails to notify them of the decision on their application within the decision period;
  •  fails to rely on one of the statutory grounds when refusing their application;
  •  bases its decision on incorrect facts; or
  •  treats the application as withdrawn when the grounds entitling the employer to do so do not apply.

If you have any questions in relation to flexible working requests, or any other employment matter, please call Claire Berry on 01480 442040 or email claire.berry@leedsday.co.uk


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