The ability for all employees with at least 26 weeks’ service to request flexible working, originally expected to come into force on 6 April 2014, has been delayed and is now likely to come into force later in the year (date to be confirmed, probably in the autumn).
The new right is introduced by the Children and Families Bill, which is expected to receive Royal Assent by 21 March 2014. The Bill also replaces the current statutory procedure for making a flexible working request with a less-prescriptive duty on employers to consider such requests in a “reasonable manner”.
In the meantime, Acas has issued its response to the consultation on a new Code of Practice for handling flexible working requests, together with a final draft of the Code. It has also published more detailed guidance which sets out good practice for employers dealing with requests and practical examples.
Code of Practice
The Code itself is very short and sets out the eligibility requirements for employees to make a statutory request for flexible working:
- All employees (not just those with parental or caring responsibilities) can make a request once they have 26 or more weeks of continuous service;
- Employees are only permitted to make one statutory request in any 12 month period;
- Employees must include certain prescribed information in their request, including the change they are seeking to their working conditions and what effect the change will have on the employer;
- A decision must be made within three months of the employee’s request (including any appeal), unless an extension to this period is agreed with the employee.
The existing statutory procedure and fixed timescales for holding meetings and communicating the employer’s decision will no longer apply.
The Code also sets out the existing business reasons for which an employer can refuse a flexible working request, which will remain in place:
- The burden of additional costs;
- 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.
A copy of the consultation response (which includes the draft Code) is available on the Acas website.
The good practice guidance is more detailed than the Code and includes a number of practical examples designed to assist employers in dealing with requests.
The guidance makes it clear that in certain circumstances, it might be appropriate for an employer to agree a period of temporary flexible working in order for employees to cope with short term demands on their time (such as a bereavement or childcare issues, or to undertake a short course of study), after which the employee reverts to their previous working arrangements.
Under the statutory right to request, if the employer agrees to the flexible working arrangements, it results in a permanent change to the employee’s terms of employment and they have no right to revert to their previous working pattern. For this reason, the guidance suggests that the parties may want to agree to a trial period, particularly if the employer is unsure whether the business can sustain the new working arrangements.
The guidance includes a section dealing with the risk that in turning down a request for flexible working, an employer may inadvertently commit an act of unlawful discrimination. This is a factor to consider particularly, for example, in relation to disabled employees who may require flexible working as a ‘reasonable adjustment’, or women who may seek to return part time following a period of maternity leave.
The guidance attempts to deal with the difficult issue of competing requests to work flexibly, which may be a problem for some employers. Somewhat unhelpfully, the guidance states that employers “are not required by law to make value judgments about the most deserving request”. In practice, however, employers may find that they have to engage in a certain degree of balancing between requests in order to avoid the risk of discrimination claims. The guidance even suggests adopting a form of random selection (“such as drawing names from a ‘hat’”) if the employer is unable to distinguish between various requests. We would suggest that this is unlikely to be appropriate (or even necessary) in the majority of cases.
A copy of the Acas guidance is available here.