The right to request flexible working, such as reducing working hours, job shares, changing start and finish times, working term time only, homeworking etc, has been in place for parents of children since 2003 and, later, carers of certain adults; however this is all set to change with the right being extended legally to anyone who has been employed continuously for a period of 26 weeks.
The change is effective from 30th June 2014 meaning that the summer months are expected to be busy on the flexible working front!
The extension to all employees aims to support not only parents and carers of certain adults, but also individuals who wish to undertake voluntary activities, look after grandchildren, those who may wish to gradually retire and anyone who did not meet the narrow definition in the current legislation.
For a flexible working request to be “valid” and to count as a genuine request it must be put in writing by the employee and contain detail about how the proposed new working arrangements will work in practice. What will remain is that, generally, employees can only make one “valid” request every 12 months so it is beneficial for employers to stay away from having informal chats about working hours as employees may reappear soon after with a more formal request which has to be considered under the regulations. Our advice is to be strict by asking anyone who is seriously thinking about changing their hours to put a request in writing for it to be dealt with properly.
The change also brings with it a removal of the statutory procedure to follow when receiving a flexible working request which is essentially a strict timetable of activity and deadlines which the employer must adhere to if they are to defend a refusal of a request. However; be warned that whilst the statutory procedure has technically been removed, tribunals will want to see that you have acted “fairly and reasonably” and will refer to the ACAS code of practice which essentially states that a flexible working request should be handled from start to finish, including an appeal, within a 3 month timescale from the date the request was received.
- Employee submits a written request; then
- If the Employee has 26 weeks service, the Employer acknowledges the request as a Flexible Working request and sets the date it was submitted.
- The Employer seriously considers it and:
– If it can be accommodated exactly; write to the employee with a Permanent amendment to contract; or
– If it is expected that it can’t be accommodated at all or exactly as proposed; then hold a meeting with the employee to explore fully the options.
- Write to the Employee beforehand inviting them to the meeting and giving them right to be accompanied by a fellow employee or trade union representative.
- The outcome of the meeting must be put in writing to the Employee within a reasonable timeframe. If you are rejecting the request, you need to identify one of the business reasons below and provide specifics.
- The Employee has the right to appeal against the decision in line with normal appeal timescales. What should follow is an appeal meeting and a written outcome within a timely manner. The person hearing the appeal should be someone independent of the initial consideration and the employee has the right to be accompanied at the meeting.
- All of this should be completed within a 3 month period unless an extension has been agreed by both parties.
The reasons for refusing a flexible working request have not changed altered and so remain as;
- the burden of additional costs;
- detrimental effect on ability to meet customer demand;
- inability to recruit additional staff;
- inability to reorganise work among existing staff;
- detrimental impact on quality;
- detrimental impact on performance;
- insufficiency of work during the period the employee proposes to work; and
- planned structural changes.
If you receive a Flexible Working Request and would like support, contact the HR team.