Changes to legislation governing flexible working mean employers need to get up to speed with the new guidelines, explains Peter Done
The profile of flexible working is definitely on the increase and many employees will consider their employer’s attitude to it a key point in valuing the organisation they work for. The government’s commitment in its coalition programme to enabling all employees the right to request flexible working underlines its significance in the future of the workplace.
This commitment has now become reality with legislative changes that took effect from as recently as 30 June 2014. The face of flexible working significantly changed on this date, meaning that employers may now be forced to consider how their organisations can work with a flexible workforce more than ever before because the right has been extended to all employees.
Flexible working was introduced as a family related work/life balance measure to give employees a statutory right to ask their employer for an adjustment to their contractual working pattern so that they can better meet their family obligations outside of work. Prior to the recent changes only a select category of employees had the statutory right to make a request for flexible working – those with children under the age of 17 or those with adult caring responsibilities. Further, employees had to have 26 weeks’ service in order to make a request under the statutory procedure.
Right to work
The right to flexible working is no longer a family related right but a more general work/life balance right available to all employees regardless of their personal situations. There is now no need for an employee to have a child, or to undertake adult caring responsibilities, to qualify to make a request. A request can be made for any reason. Employers may now, for example, receive requests from employees who want Friday afternoons off to play football; or Tuesday mornings off to attend a weight loss class. This therefore opens out the pool of potential applicants hugely, which gives rise to the opportunity for conflicting requests. The requirement to have 26 weeks’ service at the time the application is made has not been removed, and neither has the rule restricting employees to one request per year.
Flexible working can take many forms and can result in an overall reduction of hours worked per week or per month. This is the most common type of request from employees – to reduce their working days from five to three for example, and frequently comes upon return to work after maternity leave. Alternatively, an employee may make a request to keep their number of hours the same but start and finish either earlier or later than normal. Other types of flexible working include job-sharing; term-time only working; compressed hours (the same number of hours but done over four days instead of five, for example); or home-working. Unless expressly agreed, the change to the hours or location will be an official permanent contractual change. This means that, where there is an overall reduction in hours worked, other contractual benefits will be reduced pro-rata – annual leave entitlement for example.
Employers have a duty to consider the adjusted patterns in ‘a reasonable manner’ and within a ‘reasonable timescale’. All strict procedural deadlines have been removed, including the need to have a meeting with an employee about a request within 28 days of their application and to have the decision conveyed within 14 days of that meeting. Instead, employers now have three months within which to conclude the procedure but may be flexible within that time. Employers should still discuss the request with the employee (unless they know immediately that they will agree to the request) and inform the employee of the decision.
An important change from past procedure is that there is no outright entitlement for the employee to appeal an employer’s decision to deny their flexible working request. The statutory code of practice which accompanies the legislative change stipulates that a reasonable employer will permit an appeal process, however, what is reasonable will depend on the actual circumstances of the case.
Another significant deviation is the removal of the statutory right for the employee to be accompanied by a colleague at the meeting to discuss the request. Again, however, the code of practice recommends that employers allow the employee to bring someone to the meeting with them if they wish.
The reasons upon which an employer may refuse a flexible working request have not changed, and it is still possible to refuse on the basis of, for example, an inability to reorganise other staff; a detrimental impact on performance; or insufficiency of work during the periods the employee proposes to work.
Peter Done, managing director of Peninsula Business Services
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