At the moment the legal right to ask for flexible working is not available to everyone by any means. You have to be an employee (not a casual or agency worker for example); you also need 6 months continuous service with your employer. Furthermore, at the moment you also have to satisfy various other requirements, including being a carer of a child or a dependant adult for example.
This is all about to change significantly.
The right for an employee to request a contract change will be available to all employees with 6 months service – from 30 June 2014. These requests may involve a change to working hours; a different shift pattern; going part time; even to work from another location – perhaps from home a day or two each week. So, for example, an employee may request working mornings only to devote more time in the afternoons to a hobby or study course; or someone can request working part time as they approach their chosen retirement date. No care commitments need be involved after June.
Once a formal written request for flexible working is received, the Employer should follow the new ACAS guidelines – including holding a meeting within certain timescales, allowing the Employee to have a Companion, and providing for the right to Appeal if the request is turned down. However the good news is that the current strict statutory timescales are also disappearing in June; it will be left for each employer to handle flexible working requests in “a reasonable manner” –whatever that means!
However it is worth remembering that this is only about the right to “request” flexible working. This does not mean that every request can be agreed. Businesses have rights too you know! Customers have to be satisfied, costs kept under control, a service provided etc etc. Whilst the Employer does need to genuinely consider each request, if at the end of the day, the request does not suit the business; it can, and in reality should, be turned down. When an employer receives more than one request, they are not required by the law to make value judgments about the most deserving request. An employer should consider each case on its merits looking at the business case and the possible impact of refusing a request.
ACAS even recognises that sometimes it might not be possible to decide and in these instances an employer could get the agreement of the employees concerned to consider some form of random selection such as drawing names from a “hat” to decide – particularly if unable to distinguish between all the requests. It would be good practice to make this approach known to all employees from the outset in a flexible working policy.
If one request is granted, and another comes in from someone else, this has to be looked at on its own merits. The fact that the first request was agreed demonstrates that the Employer is ok with the process overall, not negative. Also granting the first request means that the business case has changed which could well justify turning down the second one. Remember though to go through the various stages and not just flatly reject any requests, as this could still result in a tribunal complaint.
These changes mean that more requests for flexible working are likely to be made.
Whilst there are some big changes, a number of important aspects remain the same, including;
- The request must be in writing
- The request must contain certain specific supporting information
- Only one request per year can be made.
- The Employer should have a specific reason for saying no.
If a Manager is unsure about granting a particular request, case law suggests that a trial period should be considered.Because more requests are received from women than men, this opens up the possibility of the issue turning into a Sex Discrimination claim for the unwary.
Managers will need to be aware of these changes from the spring of 2014, and should be given guidance on how to handle a flexible working request.
We run a ‘A Comprehensive Guide to Contracts of Employment‘ course which will enable you to delve into the changes and implications of flexible working requests.
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