Overview With effect from 30 June 2014, the right to request flexible working arrangements will be extended to all employees with at least six months' continuous service. The right currently applies to parents of children under the age of 17 or those registered as carers for children or adults only. Most of the existing detailed procedural requirements will be swept away and replaced with a duty to deal with applications 'in a reasonable manner'. In deciding whether or not employers have complied with this new general duty, Employment Tribunals will take into account a new ACAS Code of Practice, as well as supplementary best practice guidance. What isn't changing? The basis legal framework will remain the same. It is still only employees who have over 26 weeks' continuous service who will be eligible to make a request for flexible working. The law will still only allow one flexible working request per year. The same principles will continue to apply when considering such requests and the grounds for refusal will remain unchanged. Requests can still be rejected on certain business grounds. It still remains a right to request a change to working patterns; not a right to change them. Employers will still need to be conscious of the fact that employees with protected characteristics may enjoy more extensive rights under the Equality Act. An example would include the obligation to make reasonable adjustments for employees who have a disability or to justify the indirectly discriminatory effect of inflexible working arrangements on female employees with caring responsibilities, particularly on their return from maternity leave. What will be changing? The new ACAS Code specifies that when dealing with a request in a reasonable manner, that this is likely to involve many of the same steps as those currently laid down in the procedural regulations.
The ACAS Code requires that at a minimum requests are discussed with employees and decisions are notified to them in writing. There is no longer a formal legal requirement to allow workers to be represented at meetings to discuss the request, or to allow an appeal against an adverse decision. Nevertheless, the Code suggests that employers should do this as a matter of good employment practice. There will no longer be the individual time limits for dealing with each stage of the flexible working process. From 30 June, employers will be subject to a three month time limit to deal with the requests. This will also be to include any appeal against the decision refusing the request for flexible working. However, the requirement to deal with the application in a reasonable manner may well entail dealing with it in a shorter timeframe in many cases.
What about multiple requests? Following the extension of the right, it is more likely that employers may receive a number of different requests simultaneously. ACAS guidance points out that employers are not expected to judge the comparative merits of each request but they will still need to devise a fair way of managing such a situation. The ACAS Code suggests it might be possible to get the employees involved to agree to draw names from a hat. However, it also suggests, more realistically, that employees who already work flexibly could be approach to see if they would be prepared to change their arrangements to accommodate a later request.
Impact on employers The change will apply to more than 10 million employees who will have the additional right to request flexible working. The Government estimates it will lead to the agreement of more than 60,000 new flexible working arrangements every year.
Next steps Employers will need to consider whether or not to redraft their existing flexible working policy. This could be simply extended to all employees who have the necessary qualifying service or it could be changed to take advantage of the more flexible procedural regime. It will also be necessary to review any management guidance, particularly about how to best deal with competing requests, following the change in the law. For further information please contact Glenn Jaques at [email protected] or on 0114 2666660.
