GET READY FOR THE NEW RULES ON FLEXIBLE WORKING REQUESTS – A ‘DAY ONE’ RIGHT
What is Flexible Working?
Flexible working is a working arrangement centred around accommodating the needs of the employee. A flexible working request may arise where an employee requests to work different days or hours or a combination of working from home and from the office.
So, what is going to change?
The Government intends that all employees can request flexible working from day one of their employment as opposed to the current 26 weeks of employment.
The key changes are:
- Employees will no longer be required to explain what effect their flexible working request would have on their employer and how that could be dealt with.
- Employees will be able to make two flexible working requests in any 12-month period as opposed to the current entitlement of one request.
- Employers will need to consult with employees and explore other options before rejecting a flexible working request.
- Employers will be required to approve or reject a flexible working request within two months as opposed to the current entitlement to respond in three months.
Not an automatically guaranteed right
It is important for employers to remember that the proposed new law still only allows employees the right to request flexible working as opposed to a guaranteed right to be entitled to the flexible working desired.
Refusing a request
A request can be legitimately refused if an employer demonstrates that one of eight statutory reasons applies (and they remain the same as before):
- where the request would result in additional cost for the business
- where there is an inability to reorganise work amongst existing staff
- where the request would have a negative impact on the quality of work
- where the request would have a negative effect on the ability to meet customer demand
- where there is an inability to recruit additional staff
- where the request would have a negative impact on performance
- where there is insufficient work during the periods the employee has proposed to work
- where there are any planned structural changes to the business
Employers should keep clear records about the reasoning behind their decision, and if the request is refused confirm that there is a right of appeal.
If a flexible working request is approved, it will result in a contractual change to the employee’s working arrangements and should be recorded in writing.
Discrimination claims risk
Employers should be mindful of the risk of a discrimination claim being made against them when responding to a flexible working request. This applies, particularly, where the request is driven by a protected characteristic. An example of this is where a request is made in relation to childcare and the applicant may have a claim of indirect sex discrimination if the request is rejected.
Discrimination claims can be expensive to defend. If successful, an employee would be entitled to an uncapped compensatory award and could receive an additional award for injury to feelings.
ACAS
ACAS is in the process of updating its statutory Code of Practice on handling requests for flexible working in anticipation of the passing of the Employment Relations (Flexible Working) Bill. The updated Code will seek to encourage a more positive approach to flexible working.
Start taking action now
The Employment Relations (Flexible Working) Bill is making its passage through Parliament. The Bill now waits for a date to be scheduled for the final stage of Royal Assent before coming into force as the Employment Relations (Flexible Working) Act.
Employers should start reviewing and amending their flexible working policies and staff handbooks to ensure they are up to date with the proposed changes.
GET READY FOR THE NEW RULES ON FLEXIBLE WORKING REQUESTS – A ‘DAY ONE’ RIGHT
What is Flexible Working?
Flexible working is a working arrangement centred around accommodating the needs of the employee. A flexible working request may arise where an employee requests to work different days or hours or a combination of working from home and from the office.
So, what is going to change?
The Government intends that all employees can request flexible working from day one of their employment as opposed to the current 26 weeks of employment.
The key changes are:
- Employees will no longer be required to explain what effect their flexible working request would have on their employer and how that could be dealt with.
- Employees will be able to make two flexible working requests in any 12-month period as opposed to the current entitlement of one request.
- Employers will need to consult with employees and explore other options before rejecting a flexible working request.
- Employers will be required to approve or reject a flexible working request within two months as opposed to the current entitlement to respond in three months.
Not an automatically guaranteed right
It is important for employers to remember that the proposed new law still only allows employees the right to request flexible working as opposed to a guaranteed right to be entitled to the flexible working desired.
Refusing a request
A request can be legitimately refused if an employer demonstrates that one of eight statutory reasons applies (and they remain the same as before):
- where the request would result in additional cost for the business
- where there is an inability to reorganise work amongst existing staff
- where the request would have a negative impact on the quality of work
- where the request would have a negative effect on the ability to meet customer demand
- where there is an inability to recruit additional staff
- where the request would have a negative impact on performance
- where there is insufficient work during the periods the employee has proposed to work
- where there are any planned structural changes to the business
Employers should keep clear records about the reasoning behind their decision, and if the request is refused confirm that there is a right of appeal.
If a flexible working request is approved, it will result in a contractual change to the employee’s working arrangements and should be recorded in writing.
Discrimination claims risk
Employers should be mindful of the risk of a discrimination claim being made against them when responding to a flexible working request. This applies, particularly, where the request is driven by a protected characteristic. An example of this is where a request is made in relation to childcare and the applicant may have a claim of indirect sex discrimination if the request is rejected.
Discrimination claims can be expensive to defend. If successful, an employee would be entitled to an uncapped compensatory award and could receive an additional award for injury to feelings.
ACAS
ACAS is in the process of updating its statutory Code of Practice on handling requests for flexible working in anticipation of the passing of the Employment Relations (Flexible Working) Bill. The updated Code will seek to encourage a more positive approach to flexible working.
Start taking action now
The Employment Relations (Flexible Working) Bill is making its passage through Parliament. The Bill now waits for a date to be scheduled for the final stage of Royal Assent before coming into force as the Employment Relations (Flexible Working) Act.
Employers should start reviewing and amending their flexible working policies and staff handbooks to ensure they are up to date with the proposed changes.
