From today, all employees have the right to request to work flexibly after 26 weeks’ service. Previously, only those with children under 17, or 18 if the child was disabled, and certain carers had this right. So what questions are likely to arise when employers start dealing with requests under the new flexible working regime?
I understand that requests need to be dealt with “reasonably”, but what does this mean?
Employers need to make clear within new or amended flexible working policies how employees should make requests and what information they will need to provide. A request must:
- be in writing, dated and include a statement that it is a statutory request;
- explain what change to working conditions is sought and from when;
- set out what effect, if any, the employee thinks the change will have and how this could be dealt with; and
- confirm that the employee hasn’t made another request in the preceding 12 months.
- Once a written request is received employers should:
- deal with it promptly and in any event within three months from receipt, unless an extension is agreed;
- approach each request with an open mind and in a consistent way;
- if it is not possible to agree to the request immediately, meet with the employee to get a better idea of what changes are sought and why;
- allow the employee to be accompanied by a work colleague during meetings (including appeals);
- demonstrate serious consideration of the request – for example, by exploring the possibility of a compromise where the original request cannot be accommodated;
- maintain records, including minutes of meetings and a note supporting the reason(s) behind any decision to accept or reject the request;
- remember that a request can only be rejected for one or more of the eight business reasons set out in the original legislation, which include the burden of additional costs and a detrimental impact on performance;
- explain all decisions fully and confirm in writing;
- avoid making decisions based on a protected characteristic such as sex or disability;
- bear in mind that where a change is agreed, this is a permanent variation of the employee’s contract of employment;
- confirm in writing the new working arrangements and the date they will take effect, and remind the employee that they won’t be able to make another statutory request for 12 months.
If I receive a large number of requests, how do I decide which ones to accommodate?
Deal with requests in order of receipt, giving proper consideration to each one by weighing up its advantages, costs, logistical implications and likely impact on the business. It may be appropriate to let employees know that other requests have been made at the same time, and see if there is any room for compromise before coming to a final decision.
Where requests are staggered over time, employers should remember that if they have accepted an earlier request, this changes the business context against which any subsequent requests should be considered. In any event, each case must be considered on its individual merits and should not be tainted with any preferential, or discriminatory, treatment.
Can ACAS help?
ACAS has produced a Code of Practice on handling requests, supported by a guidance note to assist employers in dealing with requests. The code should be followed as far as possible as it will be taken into account by a tribunal in the event of a claim. However, the code is not a statement of law and it is the legislation itself that must always be followed.
Do I need to allow a right of appeal?
There is nothing in the legislation to provide for this, but the ACAS code of practice confirms that employers should allow a right of appeal.
What about previously decided case law. Does this still apply?
Yes. Tribunals can take into account any court decisions made before 30 June 2014 when considering how reasonably a request under the new regime has been dealt with.