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Flexible Working

I was on BBC Radio Shropshire’s Breakfast Show this morning talking about the changes in the statutory right to request flexible working which take place today.

The right now applies to all employees who have at least 26 weeks’ continuous service. Before today, a similar statutory right was available only to employees with that length of service who had care responsibilities for a child under 17 (or 18, if disabled) or an adult.

A statutory request must be in writing and dated and, unless the employer has less detailed requirements under a flexible working policy, must state:

  • the change to working conditions being sought;
  • the date from when the employee would like the change to come into effect;
  • what effect, if any, the employee thinks the change would have on the employer and how it might be dealt with;
  • that it is a statutory request; and
  • if and when any previous such requests have been made (as only one request is permitted in any 12 month period).

Under the previous regime relating to carers, a strict timetable was set out regarding the steps that had to be taken by employers when dealing with a flexible working request.  This has been replaced by a duty to consider requests in a "reasonable manner" and notify employees of a decision, including after any appeal, within 3 months (unless an extension is agreed).  There is a new Acas Code of Practice which will be taken into account by employment tribunals in deciding whether employers have dealt with requests reasonably (“the Code”) and non-statutory Acas guidance (“the Guidance”) – for which go to www.acas.org.uk).

The Code requires employers who are not minded to agree to a request to meet with the employee to discuss it before making a decision, and to allow an employee to appeal against any decision to refuse a request in whole or in part. It recommends that employees be permitted to be accompanied by a colleague at meetings.

If an employee fails to attend two consecutive meetings, whether to deal with the original request or an appeal, without good reason, employers are permitted to consider the request to have been withdrawn.

Employers will continue to be able to reject a statutory request for one of the following business reasons:

  • burden of additional costs
  • inability to reorganise work amongst existing staff
  • inability to recruit additional staff
  • detrimental impact on quality
  • detrimental impact on performance
  • detrimental effect on ability to meet customer demand
  • insufficient work for periods which the employee proposes to work
  • planned structural change to the business

Separate from the above statutory procedure, employers should be wary of the potential impact of the Equality Act in the context of flexible working requests.

Working mothers have protection against indirect sex discrimination, and any refusal of a flexible working request from such an employee must usually be “justified” within the meaning of the Equality Act if it is not to be unlawful. Correspondingly, to refuse to consider and/or agree a request by a man that would have been considered and/or agreed if made by a woman will be direct sex discrimination.

It can amount to unlawful indirect discrimination where an employer fails to agree a request for flexible working on religious grounds, e.g. to avoid work on a Sabbath or to provide time to pray or worship, where the refusal cannot be justified.

Also, employers have an obligation to make reasonable adjustments for disabled employees; and carers of the disabled and the elderly have certain protections under the Equality Act when making flexible working requests in connection with their obligations by virtue of their association with people in protected groups.

For these reasons, particular consideration should be given to flexible working requests from disabled employees and employees with care responsibilities, or which are made for religious reasons, whether or not they meet the requirements of the statutory procedure.

When changes are made to an employee’s contract following a flexible working request, they should be put in writing in order to ensure certainty, and also compliance with the employment legislation. Also, don’t forget to consider the knock on effects of any changes in working hours, such as on holiday and sick pay entitlement.

The Guidance encourages employers to have flexible working policies in place. Some employers have voluntarily considered flexible working requests from the wider workforce for some time, and it is reported that this approach tends to have a positive effect on staff morale and retention. Having in place, and applying, a well-drafted policy will help embrace the philosophy and maximise the potential for a positive impact, whilst minimising the scope for internal disputes and tribunal claims as a result of failing to comply with the statutory regime and the Equality Act. If you would like us to help you prepare a policy, or perhaps adapt a policy which you already have in place to take account of the new law, Code and guidance, please contact us.

I can be contacted either by email john.merry@lblaw.co.uk or call me on 01952 211010