Flexible Working – fact or fiction? How to handle requests after 30 June 2014

The current situation.

The right to request flexible working is certainly not new, having been around for over 10 years. 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.

So, what is changing?

This is all about to change significantly. The right for an employee to request a contract change will be available as before to all employees with 6 months service. However the big change from 30 June is that no care commitments need be involved in requests after this date.

This is not just about going part time! The requests may involve a change to working hours; a different shift pattern or perhaps swapping shifts; 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 a move from working a 40 hour week over 5 days, to working four 10 hour shifts; or perhaps seeking to work 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. It need no longer involve a care commitment.

The new procedure.

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 expected that the request will be fully dealt with within a 3 month period of being made.

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 I grant one request, do I have to agree them all?

No, that is not the case! 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.

What’s not changing?

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.
  • If the Employer cannot agree the request, a meeting with the Employee is required.
  • The Employer should have a specific reason for saying no.
  • Employees should be allowed to bring a companion with them.
  • It would be good practice to offer an Appeal if the request cannot be granted.

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. If a Manager is unsure about granting a particular request, case law suggests that a trial period should be considered.

Because more requests are likely to be received from women than men, this still opens up the possibility of the issue turning into a Sex Discrimination claim for the unwary.

Employers of all sizes should have a policy on how they will approach the requests to work flexibly from 30 June this year. Larger businesses should include training on this issue for their line managers.

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ACAS Early Conciliation Service – Compulsory from May 2014

What will be the key benefits of Early Conciliation?
  • Using Acas Early Conciliation could help you avoid going to an employment tribunal which can be costly, stressful and time-consuming.
  • ACAS expert conciliators are impartial, professional and generally valued by the people that they help.
  • Their service will provide up to date awareness of employment law and good conciliation skills.
  • Without evidence of contact with ACAS (through a certificate), the tribunal service will automatically reject most applications to make a tribunal complaint
  • The service is free.
What type of issues will Early Conciliation help resolve?

Early Conciliation will help resolve the majority of workplace disputes which may lead to an employment tribunal, including:

  • unfair dismissal claims
  • workplace discrimination
  • redundancy payments or disputes around selection procedures
  • deductions from wages or unpaid notice/holiday pay
  • rights to time off or flexible working
  • equal pay.
How will Early Conciliation work?

Once Acas receives a request for Early Conciliation they will attempt to phone the person making the claim within one working day. In that phone call they will clarify any details on the application form, gather basic information on the dispute itself and give the person a fuller understanding of the service. Once this has been done the case will be passed on to a Conciliator who will aim to make contact with both parties within one working day of receiving the case.

Why choose conciliation?
  • You can get a clearer and impartial idea about the strengths and weaknesses of your case, and ways of resolving it.
  • You can avoid the time, expense, risk and stress of going to a tribunal hearing
  • Any settlement will be on terms agreed by you, not imposed by a tribunal
  • Everything can be kept confidential – whereas tribunal hearings are normally open to the public
  • The settlement can include things not available at tribunals (for example, a reference)
What will the conciliator do?

The conciliator will talk through the issues with both sides to see if a solution can be found. The Conciliator has a month to attempt to resolve the dispute. If all parties agree this may be extended by a further period of up to 2 weeks, providing that the Conciliator reasonably believes that a settlement is possible in that time scale. There is only one extension of time allowed.

Another important aspect of the process is the impact it has on the time limit for presenting an employment tribunal claim – three months for most types of complaint. To encourage parties to take up Conciliation, the relevant time periods are suspended (i.e. the clock stops) once stage 1 has been complied with – to allow conciliation to take place. However, prospective claimants will remain responsible for ensuring they present claims to a tribunal within the relevant statutory time limit if the attempt at Conciliation is subsequently unsuccessful.

Where appropriate, the ACAS conciliator will also:

  • explain the conciliation process
  • explain the way tribunals operate, and what they will take into account in deciding the case
  • discuss the options open to the claimant, including ACAS arbitration where appropriate
  • help callers to understand how the other side views the case, and explore  how it might be resolved without a hearing
  • tell the caller  about any proposals the other side has for a settlement

The conciliator will not:

  • make a judgement on the case, or the likely outcome of a hearing
  • advise whether to accept any proposals for settlement or not
  • act as a representative, take sides, or help prepare the case
What happens if I settle the complaint through Acas?

If you settle the complaint through Acas, the agreement will be legally binding. Although agreements do not have to be in writing to be legally binding, the terms of the agreement will be recorded on an Acas form to be signed by both sides as proof of the agreement. Acas brokered settlements in these ‘short period’ cases are restricted to the matter(s) set out in the original tribunal claim.

If a complaint has been made to a tribunal, ACAS will notify the tribunal office that settlement has been agreed and they will close the case.

What happens if the two sides can’t reach agreement?

If you can’t reach agreement on a tribunal complaint, and the complaint is not withdrawn, it will be decided by a tribunal. If the claim is of unfair dismissal, or is under the flexible working regulations, it can be decided by an ACAS arbitrator if both sides prefer. Where Conciliation is refused or is unsuccessful, the prospective claimant is issued with a certificate confirming that Acas notification has been complied with. This will be needed to make a tribunal application.

What if I have a (legal) representative?

If you appoint a representative to act for you, ACAS will conciliate through them, and not deal with you directly. Your representative may agree a settlement on your behalf. As such a settlement would be legally binding, it’s important to ensure that your representative fully understands your requirements.

Will talking to Acas affect the tribunal process?

No. It is important to comply with all instructions from the tribunal as they will continue to process the case while conciliation is taking place, and will list the case for a hearing unless they hear it has been settled or withdrawn. Conciliation is completely separate from the tribunal process.

To stay up to date with the latest main employment law changes and glean help and guidance – Download our exclusive Newsletter here.

Occupation Health Reports – can employers rely on them when reviewing grounds for misconduct?

Employers are expected to obtain medical reports in a number of situations, often involving absence –  sometimes it’s about poor performance or some form of misconduct. In a recent case the Employer obtained a medical report to ascertain whether an employee had a disability.

In a worrying decision, the Court of Appeal has ruled that an employee may be disabled even though a report from Occupational Health stated that in their opinion, the employee was not disabled.

The case involved a council worker allegedly suffering from a stress related condition – one of the more problematic reasons for absence. The Employer obtained a couple of reports from an external Occupational Health (OH) provider which clearly stated that the employee was not covered by the (then) Disability Discrimination Act. This is now covered by the Equality Act.

So far so good…..

The man had had a number of absences from work, due to stress, often falling ill again soon after returning to work. It was accepted that his stress was work related.

He was eventually dismissed for misconduct following a period of suspension over bullying allegations, and brought various claims to Tribunal, including unfair dismissal, disability discrimination and a failure to make reasonable adjustments.

The Council argued, based on the medical reports, that the man did not have a disability; and therefore, amongst other things, they were not under a duty to make any “reasonable adjustments”.

The Employment Tribunal and The Employment Appeal Tribunal found in favour of the Employer, stating that they were entitled to rely on the content of the independent medical report – which probably reflects what most Employers would have done in the same situation.

However unfortunately for the Employer in this case (and for Employers generally I suggest), The Court of Appeal disagreed and sent the case back for rehearing in Tribunal.

The Appeal Court considered the OH report to be “threadbare”, with no reasoning provided to support its decision. The Court advised Employers to form their own opinion and not to merely follow OH advice without question.

This is a tough decision to be honest!  The Employer was essentially criticised for blindly following independent medical advice.

Guidance Note. Employers sometimes have to make a management decision based on medical information. It is not the Medical Advisors role to make the decision, only to offer advice. Management has to take responsibility for the final decision. In view of this decision, Employers should still obtain Medical advice first, but then objectively review it before making a decision – particularly if that decision is  to dismiss the employee.

It would now also be advisable to ask OH to justify their opinion, particularly when dealing with a suspected disability, which has a statutory rather than a medical definition.

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For more information about this topic or on any aspect of Employment Law, feel free to get in touch:

Derek Eccleston MA FCIPD
01789 470700