On 30 June 2014, Flexible Working Regulations will be amended in what some commentators are calling “the most significant steps forward since the 1963 Contracts of Employment Act.”
Why is this so important a change?
Put simply,a successful application for flexible working will result in a permanent change to his or her terms and conditions, with no right to revert to their original terms in the future (unless, after 12 months they submit a further request, which is approved by the employer)
What is the right to request flexible working?
From June 2014 (regulations made under Employment Rights Act 1996) allow all employees a statutory right to ask their employer for a change to their contractual terms and conditions of employment to work flexibly provided they have worked for their employer for 26 weeks continuously at the date the application is made.
An employee can only make one statutory request in any 12 month period. Employees who have been employed for less than 26 weeks, agency workers and office holders do not have a statutory right to request flexible working.
Once an employee has put in their request, the employer must consider it. The main areas to consider are likely to include:
- on what basis is this application made (i.e. does some elgilation already apply, such as disability or part time work)
- precedent (avoid discrimination claims by looking at how others decisions were made and in what circumstances
- what will the impact be on staff and performance (how is the evidenced),
- what are the advantages,
- possible cost implications
- logistical implications
- impact on future plans
- availability of resources (post change)
Once a decision has been made, you must let the employee know their decision, (good practice says put this in writing):
- accepted the request and establish a start date and any other action; Handling requests in a reasonable manner to work flexibly,
- confirm a compromise agreed at any discussion, such as a temporary agreement to work flexibly, or
- reject the request, setting out clear business reasons, how these apply to the application and any appeal process you permit.
Employers may only reject the request for one of the following reasons:
- The burden of any additional costs is unacceptable to the organisation.
- An inability to reorganise work among existing staff.
- Inability to recruit additional staff.
- Detrimental impact on quality
- Detrimental effect on the business’ ability to meet customer demand.
- Detrimental impact on performance (individual or company).
- There is insufficient work during the periods the employee proposes to work.
- Planned structural changes, for example, where the employer intends to reorganise or change the business and considers the flexible working changes may not fit with these plans.
Good practice suggests that a right to appeal should be attached to any decision like this and I am in favour of the fresh approach look, – where resources are available to undertake this. SME’s may not be able to do so and should focus appeal on the fairness of the process sand the reasonableness of the outcome. .
Acas have published a timely and useful guide available here