RIGHT TO REQUEST FLEXIBLE WORKING

There was much media buzz surrounding the new rules concerning flexible working that came into place on June 30^th 2014. Questions were raised, predictions made and debates ensued. Understandably so, of course, given the rather large leap this piece of legislation has made as opposed to a slow burn of gradual change typical of so many other aspects of employment law.

What I mean by this, is rather than steadily increasing the minority of people who could request flexible work group by group, the government has decided that it will be a universal right for all workers, and in so doing completely eliminating the strict criteria that controlled this area previously. While on the surface this will be seen as a coup for employees, it is also a shrewd move for employers, as a rule for all reduces the risk of discrimination claims that could potentially be brought against them.

Nonetheless, there is a set of legal requirements that both employees and employers must follow under the new ruling. ACAS, the Advisory, Conciliation and Arbitration Service has helpfully issued a code outlining what ‘must’ lawfully be done, and what steps ‘should’ be taken in order to maintain best practice at all times during the request process.

The rules for employees are as follows:

Any employee with 26 weeks or more continuous service has the statutory right to ask to work flexibly. This type of request can only be made once within any 12-month period and must state if and when they have made a previous application for flexible working. The request must be in writing, dated appropriately, and should outline the change to working conditions the employee is seeking, including the date they would the proposed new working pattern to begin.

In making their request, the employee must also consider how the employer will be affected with regards to the role itself, the impact on other team members as well as the wider department/organisation. The employee should also present thoughts on how this could be addressed by the employer.

The rules for employers are as follows:

All written requests must be carefully considered, and meetings should be set up to discuss the request with the employee further if necessary. If a meeting does take place, good employment practice would recommend that you allow the employee to be accompanied by a work colleague for this and any subsequent appeal discussion. The discussion should enable you to get a better idea of exactly what changes they are looking for and consider how this might mutually benefit your business and the employee.

During the deliberation period, employers should carefully weigh up the pros and cons for both parties, but particularly focusing on the likely impact, consequences and repercussions the requested change would have on the business in general.

If you reject the request it must be for one of the business reasons set out in the legislation, as below:

-       the burden of additional costs

-       an inability to reorganise work amongst existing staff

-       an inability to recruit additional staff

-       detrimental impact on quality

-       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 your business

Employees can appeal rejections, and it remains within the employer’s duty to allow and enable this to happen. Furthermore, all requests and their appeals have to be considered and a decision made within the first three months of receipt.

Hegarty LLP Solicitors’ Partner Martin Bloom wrote a business surgery column on this topic from a legal perspective, which can be read here on the Peterborough Telegraph website. Fellow Partner Tim Thompson will be discussing the theme of flexible working at our upcoming Employment Law Seminar, which is taking place at Peterborough Arena on Tuesday 9^th September.

For more information about any of the above, feel free to drop us an email at info@annecorder.co.uk