A revised statutory flexible working request framework came in to force on 30th June 2014 as set out under the Employment Rights Acts 1996 and the Flexible Working Regulations 2014.

Previously, Flexible working requests were only available to parents or guardians of adults requiring care, or of children under the age of 17 (or the age of 18 if the child had a disability). ACAS has produced the ‘Code of Practice on handling in a reasonable manner requests to work flexibly’ and ‘Handling requests to work flexibly in a reasonable manner: an ACAS guide’ to supplement the new framework.

What is a flexible working request?

A flexible working request is a request for one or more of the following:

  • To change the hours the employee is required to work
  • To change the times when the employee is required to work
  • To change where the employee is required to work

A flexible working request cannot be made to entail alteration to an employee’s duties and the change in law does not specify exactly how an employer should go about facilitating a flexible working request. Examples could include however, an employer creating a job share or making an employee’s role part- time.

Eligibility

Now, under the new legislative provisions, if you are:

  1. An employee, and
  2. Have 26 week’s continuous service with your employer

You are entitled to make one statutory written request for flexible working in a 12 month period.

Eligibility applies to most employees fitting the above criteria. However, there are exceptions; members of the armed forces and agency workers. Only one category of agency worker is eligible to make flexible working requests and they are agency workers who (1) Have employee status (2) have been continuously employed for a period of not less than 26 weeks and (3) are returning to work from a period of parental leave.

Procedure

  • Employers should have a set policy in place for flexible working. This should be accessible by all employees.
  • An application from an employee should be first made to the employer. It must comply with the requirements of the Employment Rights Act 1996, section 80F and regulation 4 of the Flexible Working Regulations 2014. The Government (BIS) has produced a model flexible working application form which can be used by employees making a request but this not compulsory. A request must:
  1. In writing
  2. Be dated
  3. State that it is a request for flexible working
  4. Specify the change the employee would like to make
  5. State a date when the employee would like the change to come in to force
  6. Explain the effect(s), if any, the employee thinks that the change will make to his/her role and to his/her employer and how any such change could be dealt with, and
  7. State whether a previous application has been made by the employee to the employer and, if so, when.
  • A request can be made for a temporary change, such as for a period of short study leave or bereavement. The ACAS Guide suggests that the employer and employee reach an agreement that the original working pattern will resume after this fixed time period.
  • The request should then be acknowledged by the employer in writing
  • A decision on the request must be relayed to the employee within the ‘decision period’; that is, from the date the actual request was made (the date the actual request was made is taken as the date that it is received), to the end of the period of three months beginning with that day, or such longer period as may be agreed by the employer and the employee, so long as it is agreed (a) before the current applicable decision period ends or (b) after the current decision period has ended, only if it the extension is agreed within the period of three months from the expiry of the current applicable decision period
  • An internal appeal process is not required but is encouraged by ACAS guidance.

Refusal

An employer can only legitimately refuse a flexible working request made by an employee under one or more of the following reasons:

  1. The burden of additional costs
  2. Detrimental effect on ability to meet customer demand
  3. Inability to re-organise work among existing staff
  4. Inability to recruit additional staff
  5. Detrimental impact on quality
  6. Detrimental impact on performance
  7. Insufficiency of work during the periods the employee proposes to work
  8. Planned structural changes

If the employer decides to reject the application, it should advise the employee in the notification of decision letter (1) which of the above grounds apply, and (2) explain why they think this applies.

Legal Consequences

  1. Effectively, the terms of your contract will be permanently varied to reflect the change in working pattern mutually agreed with your employer. It can only be reversed back to your original working pattern if mutually agreed. There is however, no prohibition on a temporary change, to then revert back to the usual work pattern as described above.
  2. If an employer fails to deal with a valid (see above) flexible working request application 
    • In a ‘reasonable manner’ as per the guidance provisions of the Acas Code of Practice for Handling Requests to Work Flexibly in a Reasonable Manner,
    • By not notifying the employee of its decision within the ‘decision’ period, 
    • By refusing the request on a ground other than the certain defined grounds for refusal (see above),
    • By rejecting the application on incorrect facts, or
    • By treating it as being ‘withdrawn’ when the requirements for treating the application as withdrawn have not been satisfied
  1. then an employee may bring a claim at an Employment Tribunal and claim remedies for

    1. a declaration as to the employer's failure to comply with its obligations, and
    2. an order for reconsideration of the employee's flexible working application, and
    3. an award of compensation as the tribunal considers to be just and equitable up to a maximum of eight weeks' (capped) pay

    3.   If an employee is dismissed, discriminated against, or suffers a detriment due reasons related to their making of a flexible working request, an employee may have further
          claims at an Employment Tribunal.

In conclusion, the previous regime was comparatively much more prescriptive. The impact of the changes in law are yet to be seen given their very recent implementation, but it is likely that, as the legislation intended, a much wider range of applicants will be submitting requests to their employers, for example, grandparents and wider family members.

This article provides an introduction on legal issues only and is not a substitute for taking individual specialist advice. If you are an employee or employer and require more detailed advice on flexible working or any other aspect of employment law, please contact Alice Lane, Solicitor (employment and dispute resolution).

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