From 30th June 2014 all employees who have at least 26 weeks’ continuous employment will have the right to request flexible working arrangements.
Before 30th June, there was a statutory process under which requests had to be handled, but after this date, the requirement is that employers should handle all requests in a ‘reasonable’ manner.
Employees may only make one statutory request per year (they may make requests that will fall outside the statutory system).
What is flexible working?
Flexible working could take a number of forms including:
- job sharing – two people doing the job and splitting the hours;
- flexi time – employees choose their working hours (possibly within agreed limits and ‘core’ times);
- changes to working hours or shift patterns;
- working from home;
- compressed hours – full time work over fewer days;
- staggered hours – changing start and finish times.
Requesting flexible working – the process
Whilst there will no longer be a statutory process, it is advisable for all employers to introduce a policy for handling requests to work flexibly. Having a policy will ensure consistency and make it easier to communicate the changes to employees. For those of for whom I have provided a handbook it does include a flexible working policy which meets the requirements
What should a policy include?
At the very least the policy should include:
- how employees should make a request for flexible working, including who the application should be made to and what the application should contain;
- a statement that the employer will consider each request and will only reject the request for one of the eight business reasons;
- that employees can be accompanied to any meetings, and who the person accompanying them may be;
- arrangements for appeals;
- time limits for dealing with requests.
Making the application
Applications from employees should include certain details, namely:
- the date of the application;
- the changes to working conditions they are requesting;
- the date on which they would like the changes to come in to effect;
- what effect they believe the changes will have on the employer and how they could be dealt with;
- a statement that they are making a statutory request.
Some employers may consider the introduction of a standard template for these requests, which could be made available as part of staff handbooks, etc.
The employer’s response to the request
Employers have to handle all requests ‘in a reasonable manner’.
Whilst a discussion may not always be necessary, it is a good idea for the policy to make the first stage in the process a meeting with the employee to discuss their request.
It is important that requests are dealt with quickly, as all requests have to be dealt with within three months of the request being made. However, this period may be extended by agreement between the employee and employer, subject to various requirements.
Any discussions should, of course, be held in a confidential manner, where they cannot be overheard.
There is no compulsion for the employee to be accompanied, but it may be good practice to give them the option. The policy needs to state who may accompany them – a work colleague or a trade union representative, for example.
Making sure requests are handled fairly
Of course, employers should handle all requests fairly and reasonably, and their policies should reflect this. For example, if more than one request is received, it would be fair to consider them in the order they are received and in isolation from each other. Once one decision is reached, there may be a new scenario for the second request, which means that a different decision is made.
If two requests are received simultaneously, the employer may want to have a discussion with both employees, either together or separately, to see if a compromise can be reached.
Accepting the request
If the employer accepts the request, they should communicate this to the employee – ideally in writing – confirming what the changes to working practices are and when they will start. This will constitute a change in the employee’s terms and conditions of employment.
There may be circumstances where the employer and employee want to agree a trial period for the changes, to see what the impact is. Again, if this is the case, it is advisable to confirm it in writing including the changes, the start and end of the trial period and a review date when they can both assess the impact the changes have made.
Refusing the request
An employer can refuse a request for flexible working only if there are business reasons for doing so. These reasons are:
- the burden of any additional cost is unacceptable to the business;
- an inability to reorganise work among existing staff;
- an inability to recruit additional staff;
- the employer considers the change will have a detrimental impact on quality;
- the employer considers the change will have a detrimental effect on the business’s ability to meet customer demand;
- a detrimental impact on performance;
- there is insufficient work during the periods the employee proposes to work;
- planned structural changes, for example, where the employer intends to reorganise or change the business and considers flexible working changes may not live-in with these plans.
Whilst there is no legal requirement for employers to have an appeal process, it is good practice to do so. Like all appeals, it should be dealt with as quickly and as fairly as possible.
When drafting the appeal process, employers should bear in mind the three-month time limit from initial request to final decision.
Avoiding unlawful discrimination
It is important when considering a request that employers do not inadvertently discriminate against particular employees because they have ‘protected characteristics’. For example, if a disabled employee requested a later start time because their disability meant that they were severely tired in the mornings, this would be a reasonable adjustment under the Equality Act 2010, which states that employers have a duty to make reasonable adjustments.
Other areas of potential discrimination include when employees request flexible working due to childcare arrangements and requests from part-time workers.
The increase in flexible working arrangements brings great potential benefits to employers. Flexibility to meet demand and key staff retention are just two.
However, if a robust and fair policy is not in place and applied consistently, requests have the potential of upsetting stable workforces and bringing confusion and disagreement into the workplace, as well as increasing the chances of an employee making a claim for discrimination or some other breach of their employment rights. All employers, therefore, should consider developing and communicating a policy which works both for the business and its employees.
For further information
If you have any question about the new rights or for help in developing your policy, please speak to me on 02036407748 or contact me at firstname.lastname@example.org