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There was
much media buzz surrounding the new rules concerning flexible working that came
into place on June 30th 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 9th
September.
