The Government is implementing its proposals to extend the right to request flexible working to all employees, as the Children and Families Act 2014 has now received Royal Assent. It is envisaged that from 30 June 2014, any employee with 26 weeks’ continuous service will be able to ask their employer for flexible working, for any reason.
Working flexibly can involve changes to the employee’s daily or weekly hours, place of work etc and can include arrangements such as flexitime, home working, term time only working, structured time off in lieu, compressed hours, part-time hours and job share.
Only employees can apply under the Regulations, so agency workers and office holders do not have the statutory right to request flexible working although they may have a similar right under the employer’s policies.
There are still procedural rules concerning what an employee should include in their application in order to bring themselves within the legislation. There will not be any need for the employee to state that the flexible working is required because they care for a child or dependant adult. There is no requirement to give any reason at all, but of course explanations can help the negotiations.
The current statutory process requiring employers to meet an employee within 28 days, to give a decision within 14 days of the meeting and setting similar deadlines for appeal meetings will also be scrapped from 30 June. There will instead be a duty on employers to consider requests "in a reasonable manner".
What this is likely to mean in practice is that the application should be:
- Dealt with as soon as possible, and
- Handled objectively, fairly and in a non-discriminatory way.
There will generally be a need for a meeting or telephone conversation to discuss the request and the employer should consider the request carefully by weighing the benefits to the employee and the business as well as any cost and/or adverse business impact of the changes. Having done so, it is good practice for the employer to put their decision, which could be an agreed compromise, in writing. If they refuse the request, the employer should state their clear business reasons for doing so. Alternatively, the employer may suggest a trial period under the new arrangement. The employer should generally give their decision within 3 months of the request being made.
There will still not be any right to have the request granted but there are limited grounds on which an employer may refuse a request. An employee will only be able to make one request per year, and any request to which their employer agrees has the effect of changing the contract of employment indefinitely (unless the employer and employee agree otherwise).
The aim of the Act is to help people achieve a better balance between their work and home life but employers can benefit too: flexible working can enhance motivation and loyalty and lower staff turnover. ACAS recommend that employers formulate a clear written policy for handling flexible working requests, in consultation with employees and their representatives. Having a policy should ensure consistency and clarify matters such as who to make the request to, each step in the process, timescales and who can accompany the employee to any meeting etc.
Employees may be able to bring a legal claim if they think they are being treated badly because they asked for flexible working arrangements.
If you would like advice about whether you are eligible to make a flexible working request or how to formulate a flexible working application, or if you think you have been unfairly treated, please call Slater and Gordon on freephone 0800 916 9060 or contact us online and we’ll be happy to help you.