Flexible Working 2014
This HR Micro Guide is designed to give you the employer an overview of the legal employment law change to the right to an employee’s right request flexible working.
As from 30 June 2014, any employee with at least 26 weeks’ service will have the statutory right to request flexible working arrangements.
The right previously only applied to the parents of children under 17 (18 if the child was disabled) or to those with caring responsibilities for an adult.
It also replaced the former very formal statutory procedure an employer had to follow when dealing with flexible working requests. It has been replaced with a duty for employers to handle flexible working requests in a reasonable manner, but with the caveat to consider such requests and reach a decision within 3 months.
It is important to note that the right is still only a ‘right to request flexible working’ and not an absolute right to work flexibly. The changes are considered permanent variations to the terms and conditions of employment unless otherwise agreed and confirmed in writing.
It remains that an employee can only make a statutory request to work flexibly once in any 12 month period. Qualifying employees can request changes such as working hours, duties, working time and work location and ways of working.
So what exactly is a ‘reasonable manner’?
ACAS has produced a statutory Code of Practice and Guidance to help employers deal with flexible working requests in a ‘reasonable’ manner. Key points are:
- to arrange a meeting with the employee as soon as possible after receiving their written request to work flexibly
- discuss the request with the employee to better understand the changes s/he is requesting. How they feel it will work operationally and how they feel it may be mutually beneficial
- give careful consideration to the request.
- to look at the benefit to the employee (*see below) and the business
- evaluate these against any adverse business impact if the changes were implemented.
The key 8 key grounds given to reject a request remain and as a reminder they are:
- the burden of additional costs to the employer
- an inability to reorganise work amongst existing staff
- an inability to recruit additional staff
- a detrimental impact on quality
- a detrimental impact on performance
- detrimental effect on ability to meet customer demand
- insufficient work for the periods the employee proposes to work
- a planned structural change to the business.
Once you, the employer, have made a decision, the employee must be advised and the decision put in writing as soon as possible. There are basically 3 potential outcomes:
- Request accepted. You need to meet with the employee and agree how and when the changes will be implemented. This should then be put in writing and the agreed variations to contract issued and signed.
- Request accepted subject to amendment If the request is accepted, subject to some amendments, this should be discussed with the employee to see if an agreement to amend can be made. If agreed move to 1. If not agreed move to 3.
- Request rejected. If the request is rejected you should allow the employee the right to appeal against the decision.
An employee can make a complaint to the Employment Tribunal with regard to their Employer’s handling of their request. However, unless the employer’s treatment of the employee constitutes unlawful discrimination (under the 9 protected stands contained within the Equality Act), the tribunal will only look at:
- did the employer follow the procedure properly?
- did the employer take the application seriously?
- make their decision on the correct facts?
- whether the employer’s reasons for rejecting the application was on one of the acceptable grounds (above).
Employees of course may be able to bring a tribunal claim anyway if they consider they were discriminated against and unfairly treated because of a protected characteristic if their request is rejected.
ACAS Flexible Working Code of Practice (CoP) – Confusing?
I personally think so.
Therefore I felt it was important to include within this within this HR Micro Guide on Flexible Working.
It is extremely unfortunate this CoP is, in many views, confusing rather than supportive in the implementation of this Flexible Working change.
For instance, it states “consider the request carefully looking at the benefits of the requested changes in working conditions for the employee …. and weighing these against any adverse business impact of implementing the changes”.
Remember breaching any CoP can be taken into account by a Tribunal, so it is important for employers to get it right. So how exactly does this confuse the issue I hear you ask?
It is, in fact, a departure from the clearer position under the old regime. From 2003 when the Flexible Working Regulations first came into force, employers had to assess whether the requested change fell inside, or outside, one or more of the 8 permissible reasons for refusing a request. So if the request sat outside, the employer could refuse the request irrespective of the extent of the adverse impact on the employee.
The wording in the new Code (“looking at the benefits ….for the employee”) suggests that this is no longer the case. What if one employee’s personal circumstances were considered greater than another? This code implies that the employer must grant a flexible working request to the employee whose needs were considered the greater.
So who judges this? It would mean employers having to make a personal subjective judgement about which request they considered the most important to each individual. But how do you justify whether childcare, caring, religion, disability, work life balance or some other reason should be given the greater priority? To do so is subjective and open to question so not the kind of judgements any employer wants to make. The scope for being accused of demonstrating discriminatory assumptions, scepticism, or just plain ignorance is substantial for an employer.
Another confusing factor is the required information within the new Statutory Flexible Working request letter. It does not require the employee to give reasons why they are making the request. So how can it have been the Government’s intention that employers should take an employee’s personal reasons into account?
The ACAS CoP then also goes on to state “allows the employee to explain the reasons why they are seeking the change if they choose to tell their employer this” So they have a choice not to. And, Employers therefore are not required to ask or evaluate the most deserving. In my world I interpret this means, employees do not have to give this information, and employers do not need to know or ask for an individual’s reason for making the request.
It gets worse. The ACAS CoP then also states “when considering each case on its merits, the employer should look at “the possible impact of refusing a request”. One must assume this means the impact on the employee not the employer. So in one CoP there are many contradictions. Confused? You have good reason, but I would suggest the following to any client:
Recommended actions to take
A recent CIPD report indicated that many employers were already happy to consider flexible working requests from any employee (whether they had the statutory right or not) as a retention tool for talent – so have no great new expectations.
This has certainly been my experience as employers recognise it is a retention tool to keep the talent they need. And, often when the proposal to support the request is explored there can be real business value to the employer as well as the requesting employee. So it is always worth investigating.
There will, however, be some increase as employees get to know of this extended statutory right. It is therefore important for you to implement (or review an existing) Flexible Working policy so your managers will be able to deal with any requests to work flexibly fairly, consistently and within the changed law.
Fortunately the above CoP also states “requests should be considered in the order they are received”. Now this is something black and white we can work with. The rule of ‘first come first served’. The greyer route available of treating requests differently because of a personal subjective judgements, based on a person’s personal reasons for making a flexible working request, or driven by a protected characteristic within the Equality Act is a much higher risk strategy.
What if both requests are underpinned by a ‘protected characteristic’ but different ones? And let us not forget an employee’s need to work flexibly can be personally imperative without stemming from such a ‘protected characteristic’ at all.
Even if you forget trying to comply with the law for a moment, what about the detrimental risk of conflict and grievances within your workforce if it is felt you have not treated a flexible working request fairly?
It may also simply not be operationally possible to accommodate all requests, so I would recommend an employer deals with requests on a ‘first come first served’ basis and, following an investigation into the operational viability, base the business decision on whether any of the eight permissible reasons apply to the requested change in working arrangements.
My only caveat in dealing with requests out of this order ‘first come first served’ basis would be where a later request is driven by a disability. This could represent a reasonable adjustment and there already exists an element of required positive discrimination in this area. Otherwise the minefield which awaits the employer as soon as they depart from the ‘first come first served’ order in dealing with flexible working could be a very risky strategy to take.
As an additional note I should mention that claims of discrimination (9 protected characteristics within the Equality Act) can of course be brought by an employee who cannot rely on the statutory right to request flexible working because they have under 26 weeks’ service. Ultimately, I would recommend you the employer to still consider each request on its total merits and the potential business impact of any changed flexible working arrangements.
An alternative suggested by ACAS would be to hold a random draw, subject to employees’ consent. I will leave it up to you how viable you feel this option would be, and how it would go down within your business and with your workforce!
Finally it does make sense for you, the employer, to make any agreed variations to contract due to flexible working requests as ‘agreed in principle’ and subject to a trial period and annual review to ensure that the arrangements work for all parties.
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Carole Thomson Chartered FCIPD, Tech IOSH
Senior HR Consultant and Trainer
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