Flexible working – Changes from 30th June 2014
From the 30th June 2014 the right to request flexible working has changed so that any employee with at least 26 weeks’ continuous service can now make a flexible working application.
Prior to this only qualifying employees were able to make an application under the relevant legislation.
There was and still is nothing to stop employers agreeing something with their employees or from having a more comprehensive flexible working policy than is contained in law.
Key Features of the Right to Request Flexible Working
- Anyone employed for 26 weeks’ or more can make an application
- Only one application can be made in any 12-month period
- The employee must make their application in writing
- You have three months to consider the request
- You must behave in a reasonable manner
- A request can only be refused for one of 8 reasons
Who can exercise the legal right to request flexible working?
An employee who has 26 weeks’ continuous employment at the date the request is made.
What kind of change can be applied for?
An employee may request a change if it relates to:
- A change to the hours they work.
- A change to the times when they are required to work.
- A change to the place of work (as between their home and any of the employer’s workplaces).
The scope of the type of application that an employee could make is therefore fairly wide. The idea behind the legislation is to encourage employers to embrace creative ways of working that utilise new technology.
The type of application you may receive could be:
- part-time working,
- full-time working
- annualised hours
- compressed hours
- staggered hours
- term-time working
Permanent or Temporary change?
The change that is requested and which you may agree could be a permanent change to the employees’ terms of employment, or it could be on a temporary basis.
This will depend upon the request and what you agree with the employee.
What is the process that needs to be followed?
Stage 1 – Employee’s application
The employee makes their request in writing, which triggers the process and the application should include:
1) the date;
2) that it is an application under the right to request flexible working;
3) details of the change that the employee is requesting;
4) when they wish the change to take effect;
5) details of the potential effect of the change and how this will be dealt with;
6) details of whether the employee has made an application before.
ACAS guidance goes slightly further than the legislation and suggests that the employee should give the date of any previous application, and if they are making the application because of a reasonable adjustment for a disability, then they should state this.
Stage 2 – Acknowledge
Once an application has been received you should acknowledge receipt, and if any of the information listed above is missing from the application ask that the employee provides this.
Your obligation as the employer is to behave reasonably and therefore you should not delay in acknowledgement.
Stage 3 – Meeting with the employee
The next stage is to discuss the request with the employee.
If you intend to approve the request without the need for further information or discussion then there is no need to hold a meeting, you can just notify the employee that it is agreed.
Although there is no set timescale for arranging the meeting it is advisable to do so as soon as possible after receiving the request. If for any reason there is likely to be a delay in holding the meeting then you should notify the employee of this and the likely timescale.
The purpose of the meeting with the employee is to discuss the details of their application and how this will impact their terms and conditions as well as the business. It is important therefore to tell them about how the proposal they have made may affect their salary and benefits if accepted.
The employee should be allowed to be accompanied at the meeting by a work colleague. Please note that this is not a legal requirement but a recommendation that ACAS makes.
Stage 4 – Decision
The decision should be made after consideration has been given to the request and the logistics of how it would work in practice.
You have three months (starting with the date on which the request was made) to make the decision and to deal with any appeal. It is important however, as stated above, to avoid unnecessary delay.
If you are going to accept the request this should be confirmed in writing to the employee with an agreed start date.
If there is an alternative solution which may or may not have been discussed then inform the employee of this and offer them the option to accept the alternative. Further discussion may be needed with the employee if a compromise is proposed.
If you are rejecting the application then you must inform the employee of the grounds for rejection and it can only be for one of the statutory reasons set out below.
Rejecting or refusing the request
1) Refusal for eligibility grounds
If the employee is not eligible to apply or they have themselves not complied with the procedure you can reject the application.
You may decide to exercise your discretion in respect of the employee’s failure to follow the required procedure. In the interests of good employee relations you could point out the error in the process or make a decision in any event.
The law sets out the minimum requirements and you are always able to go further and exercise your discretion.
In any event rather than merely refusing due to eligibility you should also include one of the statutory reasons for refusal, as this will help to mitigate the risk of a claim by the employee based on a technicality.
2) Refusal of request for a prescribed reason
The legislation recognises that an employer may have entirely legitimate business reasons why it cannot accommodate a flexible working request. There are eight specific grounds for rejecting a request, which are the same grounds that applied before 30 June 2014, and only these grounds may be relied on as reasons for rejection:
- 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.
- Planned structural changes.
When deciding on the reason for refusal there is no need to have to justify the decision. The law states that it is a subjective test and therefore if you consider that the ground applies then the test is satisfied.
There is no need to provide an explanation to the employee and technically you could just state that one of the 8 reasons and that is it. However in the interests of employee relations and ensuring a happy workforce it would be advisable to at least give the employee some reasons for your decision.
Often issues and disputes arise at work due to a lack of communication, so the more you can explain to the employee about your decision making the better this will be for preventing a dispute.
Stage 5: Appeals
There is no legal obligation upon you to allow the employee to appeal against the decision, however it is advisable to have some sort of appeal process, and in fact the Acas Code suggests that employees should be allowed to do so.
This will also help to assist in preventing disputes from arising.
If an employee appeals then, as with grievance and disciplinary issues, it is advisable that where possible someone who has not already been involved in the process deals with the appeal.
A meeting should be arranged with the employee to discuss the decision.
Can we agree a trial period?
Although there is no requirement for this in the legislation there is nothing to prevent you agreeing to a trial period. This may be advisable where there is a question over whether the proposed arrangements will actually work in practice.
You are also free to agree an extension to the trial period with the employee if this is needed.
What happens if we reach an agreement and grant the flexible working request?
If an agreement is reached and the new working arrangements are to begin there will be a variation to the employees’ contract of employment.
This variation will be permanent and you are required to put the details of what has been agreed in writing to the employee or provide them with a new contract of employment setting out the new terms.
It is also recommended that after a period of time with the new working arrangements that you meet with the employee to ensure that it is working as expected.
What if we agree and then it does not work and we want to change the employees’ terms back?
After the new working arrangements have been agreed (unless you have agreed a trial period) any change, including a change back to the old terms, will have to be agreed with the employee.
If the employee does not agree to change their terms any change you impose will be a breach of contract and could result in a claim against you.
What if the employee wants to change their terms back?
Unless you are willing to agree, the employee cannot make another flexible working application for 12 months’.
You can of course negotiate with the employee if you wish.
What happens if the employee makes an application but won’t attend a meeting?
If the employee fails to attend a first meeting and then a re-arranged meeting you are entitled to treat the application as being withdrawn and you should notify the employee accordingly.
The same applies if they fail to attend an appeal meeting.
In practice it is recommended that you keep open lines of communication with the employee and find out why they are not attending, and perhaps consider some adjustments or going beyond the requirements of the law.
What happens if we receive more than one request? How do we decide which to approve?
You are required to look at each application on its own merits in the context of your business and its requirements. You should avoid comparing applications from different employees.
Requests should be considered in the order in which they are received, and it may be that a decision you make with the first employee will impact your decision making in respect of subsequent applications.
If you consider that there may be difficulty in accommodating more than one request you may consider having a discussion with those employees who have made the request to see if there is a compromise.
This may work very well for the business, for example, you have 2 employees who want to reduce their hours but each work on the same day. After discussion you arrange it so that cover is provided for all 5 days of the week on a job share basis. You can then employ a third full-time member of staff to pick up the remaining work created by the reduction of the existing employees. Two full-time roles will be fulfilled by 3 people. You have two happy and experienced employees and are able to invest in growing your team and expertise.
The key thing to remember is that you are required to deal with a request in a reasonable manner.
Should I give priority to an employee who has a disability or a child?
You should consider carefully any applications from employees who may qualify for additional protection under the Equality Act 2010.
In this situation you should weigh up the need to make reasonable adjustments for a disabled employee or avoid indirect sex discrimination against a working mother.
If you have concerns about this type of situation you should seek advice before making your decision.
What claims could an employee make if I get things wrong?
If you have made mistakes with the procedure an employee could claim:
1) you failed to deal with their application in a reasonable manner.
2) you failed to notify them of the decision on their application within the decision period.
3) you rejected the application for a reason other than one of the statutory grounds.
4) your decision to reject the application was based on incorrect facts.
5) you treated the application as withdrawn but neither of the grounds to do so applied.
The Employment Tribunal cannot question the commercial rationale or business reasons behind a decision to refuse a request.
This means that the Tribunal are restricted in what they can decide in a claim under the flexible working regulations.
How much can an employee claim if the Employment Tribunal decide against us?
Where a tribunal finds an employee’s claim is successful, it must make a declaration to that effect and may make either or both of:
- An order for reconsideration of the request.
- An award of compensation to be paid by the employer to the employee, of such amount as the tribunal considers just and equitable, up to the permitted maximum.
The maximum amount of compensation is eight weeks’ pay, to which there is a statutory cap (as at 1st July 2014 this is £464).
Are there any other issues that we should be considering when making a decision about flexible working?
- Sex discrimination
Under the old flexible working regime most cases that were brought for a breach of the right to request flexible working also included a claim for sex discrimination. You should consider this as an issue when dealing with requests and particularly multiple requests.
- Maternity leave
Requests from employees who are either about to go on or about to return from maternity leave should be considered carefully.
- Disability discrimination
As an employer you have a duty to make reasonable adjustments for a disabled employee so as to effectively treat the disabled person more favourably than others in an attempt to reduce or remove that individual’s disadvantage.
A reasonable adjustment may include granting their request for flexible working or looking upon it more favourably than others.
- Religion or belief discrimination
A request may be made to accommodate religious beliefs and therefore a rejection of a flexible working request for these reasons may result in a claim for indirect religion or belief discrimination.
- Constructive dismissal
Constructive dismissal arises where the employee resigns from employment because their employer’s acts or omissions amount to a repudiatory breach of contract.
If during the application process you conduct yourself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between you and the employee this could result in a claim for constructive unfair dismissal.
Do we need a Flexible working policy?
It is strongly recommended that you have a flexible working policy included in your handbook or with your other procedures that deals with the right to work flexibly.
Given the media coverage about the recent change you may find that employees have a lot of questions or perhaps only hear part of the details of their legal right and therefore having a policy in writing to direct them to will assist. It will also help your managers to understand the procedure.
You can download a free procedure which you can use for your staff at the document shop – here
Best Practice Hints & Tips
- Try to be flexible in your approach and not dismiss an application as unworkable immediately.
- Consider alternatives that may work for your business and the employee.
- Engaged in discussions and consultation with the employee.
- Ensure that you fulfil the minimum legal requirements but don’t be too prescriptive in your approach.
- Avoid dismissing applications based on a technicality.
- Avoid assumptions and try to be open minded.
- There are a number of practical benefits to flexible working arrangements and perhaps some benefits to your business which you may not have considered.
If you have any more hints and tips you want to share with fellow employers then please email me firstname.lastname@example.org
Where can I find more information?
ACAS have produced a Code of Practice and Guide which you can find here.
You can also contact me by phone 023 8098 2006, 01983 897003, 07969 598080 or email email@example.com to discuss your individual business requirements or for any questions that are not answered here.
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