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Flexible Working – Be Prepared for the Changes

Posted on Jun 06, 2014 by  | 0 Comments

On 13 November 2012, the government published its response to the Consultation on Modern Workplaces and confirmed its intention to implement the extension of the Right to Request to all employees with 26 weeks' continuous service, replace the statutory procedure for considering requests with a new duty on employers to act reasonably within a reasonable period and introduce a statutory code of practice and best practice guide. The Flexible Working Regulations 2014 were laid before parliament this week and come into force on 30th June.

This is in the context of employees working in a far less traditional way than before, thanks mostly to developments in technology and due, I think, to a greater acceptance that employees generally are more productive when they can work in ways and at times that suit them best and a greater desire by employees to find that work/life balance.  So, more people than ever are working from home, on a part-time or job share basis or at more flexible locations.

The current legislation only allows parents of children aged 17 or under, disabled children under 18 years and carers of adults to make a statutory request. There is also a strict statutory process in place for considering the request with specified reasons that an employer must be able to justify in order to refuse a request.

So, from 30 June 2014, every employee will be allowed to make a flexible working request, regardless of whether they’re a parent or a carer, provided they’ve got at least 26 weeks’ continuous service.  Many of the current provisions remain the same – so, the employer isn’t obliged to accept the request but must consider it. The change will be a permanent change to the contract though you could agree on a trial period with the employee.  Employers still can only refuse the request on a number of prescribed business grounds (e.g. inability to reorganise work amongst existing staff or burden of additional cost etc), the employee still has the right of appeal and still only has the right to request one change per 12 months.  Of course, this doesn’t mean that employees can’t request a change at any other time – they just don’t have a legal right to do so.   There is also still scope for a compromise to be agreed should you not be able to fully grant the employee’s request.

The good thing is that the prescribed procedure for dealing with flexible working requests no longer exists but you’ll still be required to deal with the request within three months of the request (including appeal), you still need to offer the right of appeal and the right to be accompanied.  It’ll probably be useful for companies to put Right to Request Policies in place to ensure that requests are dealt with consistently and fairly and also to let employees know of the extended right, and the grounds for refusing.  There’s no prescribed procedure but ACAS has published a statutory Code of Practice and a Best Practice Guide, that can be found on the ACAS website.  It also offers training on the new regime. 

The other thing to consider, of course, is discrimination and making sure you avoid it. So, if someone is requesting Flexible Working because they’re disabled, or for child care reasons, it is important to ensure you’re not indirectly discriminating against them by saying no.      

We would be interested to hear whether or not you think you’ll get a lot of new requests under the new procedure?  Do you get many anyway?  One of the issues that some employers face already and may worsen are multiple requests from people in the same team – how do you prioritise?  Well the Code says that you just deal with requests in date order – you’re not expected to put a value judgement on who is the most deserving applicant.  But what you could do, if you’ve got employees who’ve been on flexible working for some time, is ask for volunteers to return to their original contracts or even a revised one – it could be that their circumstances have changed and they’re happy to got back – this will free up some capacity for employees who’ve made later requests. 

If you have any questions in relation to flexible working requests or how to implement or change your existing policies to reflect the changes, we would be happy to hear from you.

Hannah

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