Latest insights from our experts

Posted 1 July 2014
by Martin Laver

Flexible working reforms

The eligibility and the manner in which an employer has to address a flexible working request changed from the 30 June 2014, due to the enactment of the Children and Families Act 2014.

The new eligibility requirements

The entitlement to apply for flexible working has changed, albeit slightly. Many of the requirements remain the same, these being;

  • Only employees can apply;
  • The employee must have at least 26 weeks’ continuous employment at the date of the request;
  • Only one request can be made in any 12 month period; and
  • Agency workers cannot make a request, unless they are returning from a period of parental leave.

The major change in terms of eligibility is the removal, from June 30, of the requirement that an applicant must have caring responsibilities. This means that any employee, so long as they meet the requirements set out above, will be able to make a request for whatever reason.

What can an employee ask for exactly?

An employee can ask to change the amount of hours that they work, change the times when they are required to work, or change the place of work.

This applies to all employees, irrespective of the type of contract that they have; whether it is an annualised contract, part time, full time or homeworking for instance.

In terms of individuals working under zero hours contracts, these provisions may not assist them greatly in practice as they are more often than not workers and, even if they are employees, they will generally be able to refuse to work under the terms of their contract.

How should an employee make a request?

The employee should make a formal request in writing, detailing the change that they are requesting, with information explaining when they would like the change to take place, the date of any previous applications, when they would like the change to take effect and how this can be dealt with.

How should an employer deal with such requests?

According to the new legislation, employers should deal with requests in a “reasonable manner.” Unfortunately, there is not a statutory definition of this but Acas makes some recommendations about how an employer should approach an application. The question that should be asked throughout the process is: “what is reasonable?”

First, a meeting should be held with the employee to discuss the implications of the proposed change upon the business as well as any effect upon remuneration, pension contributions and bonuses.

Acas states that it would be reasonable to allow an employee to be accompanied, especially where the employee is disabled, lacks confidence or their first language is not English.

The employer then has three months to make a decision, or longer if it is so agreed between the parties.

A trial period may be beneficial to both parties in order to determine whether to approve the request or not. The compatibility of the request and the needs of the business can then be reviewed throughout the trial period and any issues can be addressed. Where an employee suggests a trial period, it may be difficult for an employer to refuse this without appearing unreasonable in their approach unless there are very clear reasons for such a refusal.

The eight business reasons for refusing a request remain the same, but by way of a reminder, these are:

  • The burden of additional costs;
  • Detrimental effect on ability to meet customer demand;
  • Inability to reorganise work among existing staff;
  • Inability to recruit additional staff;
  • Detrimental impact on quality;
  • Detrimental impact on performance;
  • Insufficiency of work during the periods the employee proposes to work; or
  • Planned structural changes within the organisation.

Another legislative change is the repeal of the right to appeal the employer’s decision; however Acas suggest that it would be unreasonable not to allow the employee the opportunity to appeal and have a companion present. An appeal allows an employee to ensure that the decision was based upon correct facts and it brings this process in line with other process within employment law such as disciplinaries and grievances.

Difficulty may arise where an employer receives several requests and whether the employer should prioritise these, and if so, how? Acas states that the starting position is that requests should be dealt with in the order that they are received. Nonetheless, it may be expected (and it may be wise) that employers may choose to prioritise requests from employees who may have extra protection (e.g. disability) and could claim discrimination if their request was refused unreasonably.

The employer should also speak to the employees concerned to determine whether there could be any compromise between the requests, to allow all of them to be approved.

Particular risks

There is a real danger when dealing with requests that employers, aware that the statutory obligations require consideration but not necessarily acceptance of a flexible working request, refuse purely on the basis they consider one of the eight business reasons (set out above) applies. However employers do need to remember that refusal of a request could give rise to a discrimination claim in appropriate cases – e.g. a decision to refuse to allow a woman returning from maternity leave to reduce her hours could be challenged under sex discrimination legislation. This doesn’t mean an employer has to agree to every request – but it does mean that the onus is very much on employer to be able to show that they have properly considered any request, have followed a fair process and have come to an outcome which is objectively justifiable.

How we can help you

Our employment team can arrange to draft or review existing Flexible Working Policies, answer any of your questions or provide you with any template letters relating to the post 30 June 2014 flexible working process.

These notes are for general guidance only. For further information or specific advice please contact the employment team at Tozers on 01392 207020 or email employment@tozers.co.uk

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About the author

Martin Laver

Partner

Partner in the commercial litigation team specialising in disputed trusts and Wills