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Employment Solicitor Deborah Casale discusses whether changes are afoot for a more flexible workforce?

By Practice Group Leader, Employment

New changes to come into force by 2014 will extend the right to request flexible working to all. But will they really make a difference to working practices?

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 Flexible Working to all employees with 26 weeks' continuous service.

The current right to request is limited to those with caring responsibilities – either for a child under 17 years’ old, or a disabled child under 18 years’ old, or for an adult who is a spouse/partner, relative, or who lives at the same address, as the employee.

Although the government’s aim to extend the right to request flexible working is commendable, it remains to be seen whether many employees will exercise this right in practice. It may a useful if you are a grandparent with caring responsibilities and are not covered by the current legislation. But will others who are not parents take up the new right? In any event don’t many employers already allow flexible working?

The current position is that you have a right for your request to be considered, not an actual right to work flexibly. This will not change. It is reasonably easy for your employer to reject your request on one of eight grounds. Some of these include the burden of additional costs, the detrimental effect on ability to meet customer demand and the inability to re-organise work among existing staff. It is unclear whether these grounds will change under the new proposals.

Consequently, the vast majority of cases under the current legislation are linked to claims of indirect sex discrimination (i.e. the refusal of the request has a disproportionate impact on women)

An indirect Sex Discrimination Claim undoubtedly has more teeth, however it is possible that the scope for indirect sex discrimination claims will decline if proportionately more men start making flexible working requests, because any refusal will be less likely to have a disproportionate impact on women. It will be interesting to see if there is a greater gender balance in those exercising the right to request flexible working when the legislation comes into force and therefore whether claims for indirect sex discrimination will be harder to establish in practice.

The old procedure for considering requests will be replaced with a new duty on employers to act reasonably within a reasonable period and a code of practice and best practice guide will be introduced. Although this may reduce red tape, it may lead to uncertainty for employers and employees.

Not all employees will be covered. It is likely that employees with "employee shareholder" status, should this class of employees ever reach the statute book, (i.e. employees who can waive certain employment rights, in return for shares in their employer worth at least £2,000,), will not be covered by the new proposals. The right to request flexible working will only be granted to these employees when they have returned from Parental Leave, which is the minimum right under the Parental Leave Directive.

If you have been refused flexible working or have been discriminated against please do contact us for further advice. Click here for a standard letter to your employer to request flexible working.

By Employment Solicitor Deborah Casale.

Read more about Flexible Working.

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