Important changes to flexible working rights
The Children and Families Act 2014 extends the right to request flexible working to all eligible employees. Will this mean a rush of applications to work flexibly as the summer holidays approach? Possibly, but even if it doesn’t, employers will need to ensure that requests are considered reasonably and fairly to avoid the risks of discrimination claims.
The extension of the right to request flexible working takes effect for flexible working applications made on or after 30 June 2014. Briefly, the right is extended to all employees whether or not they are parents or carers provided that:
- They have 26 weeks' continuous employment at the date the request is made.
- They have not made a request to work flexibly in the preceding 12 months.
- They are not agency workers or office holders.
The statutory procedure for considering requests, with its stringent time limits, has been replaced by an obligation on employers to consider requests in a reasonable manner and to notify the employee within the “decision period”. This means that the process, including any appeals, must be completed within three months of receipt of the employee’s written request but this period can be extended if both parties agree
Although flexible working policies need to be updated concerning requests made on or after 30 June 2014, employers should not discard their old policies just yet. The rigid statutory procedure and stringent time limits still apply to requests which were made up to 29 June 2014, regardless of the date on which the request or any appeal is considered. Employers who do not follow the statutory procedure for requests received on or before 29 June 2014 could still face a claim on that basis.
So, will employers be faced with a flood of applications for flexible working in the coming months? Should employers who receive requests from parents and carers give those requests priority over someone who wants flexible working to take up a new hobby or who just wants a better work-life balance? What if your organisation simply cannot accommodate any new requests?
To help employers manage these tricky issues Acas has published a Code of Practice and a Guide on dealing with flexible working requests.
The Code of Practice Handling in a reasonable manner requests to work flexibly is very brief, only two pages long! It states that employers should consider the request carefully, looking at the benefits of the requested changes in working conditions for the employee and the business and weighing these against any adverse business impact of implementing the changes. In considering the request, employers must not discriminate unlawfully against the employee.
Accompanying the Code of Practice is the Acas Guide on handling requests to work flexibly. This provides practical guidance on developing a right to request policy, handling requests and the business reasons to consider when dealing with requests. Note that the eight statutory business reasons for rejecting a request are unchanged and the Guide includes useful examples of each of the business reasons and how they might apply.
So what should employers do to ensure that requests for flexible working are considered reasonably? The Guide suggests the following:
- On receiving the request, arrange to discuss it with the employee as soon as possible. The discussion does not need to be face to face if both parties agree, but in either case, ensure that the discussion is not overheard.
- It is good practice to allow the employee to be accompanied at the discussion/meeting.
- The discussion should take place at a time and location which is convenient for both parties. If the employee doesn’t attend the discussion or meeting and fails to attend the re-arranged one without a good reason, the employer is entitled to consider that the employee’s application is withdrawn.
- When deciding on the request, as mentioned above, employers should consider the request carefully, looking at the benefits of the requested changes for the employee and the business and weighing these against any adverse business impact. Don’t forget that an employer can only reject a request to work flexibly for one of the specified business reasons. If there is some uncertainty about whether the arrangement will work, a trial period could be agreed instead.
- Clearly employers may not be able to grant all the requests they receive and there will be a number of potentially tricky issues for employers to deal with.
For instance, more than one request may be made at the same time.
- The Guide suggests that requests should be considered in the order they are received. This will of course impact on how the subsequent requests are decided because the business context will have changed if the earlier request was granted.
- The Guide also states that, employers are not required to make “value judgments” about the most deserving request. Rather, each case should be considered on its merits looking at the business case.
- Employers may want to have a discussion with staff to see if there is any room for compromise or adjustments to the original request before coming to a decision.
What about the situation where a number of employees are already working flexibly and agreeing to any further requests will impact adversely on the business? The Guide recommends that employers should consider calling for volunteers from those already working flexibly to see if they want to revert to their original working arrangements. This might then provide some scope for agreeing to the new requests.
Interestingly, the recent decision of the EAT in the case of The Solicitors Regulatory Authority v Mitchell dealt with the issue of revocation of long-standing flexible working arrangements. The EAT upheld the Employment Tribunal’s decision that the changes constituted sex discrimination.
Mrs Mitchell worked three days a week in the office and two days at home for child care reasons. Mr Singh, another member of the team had similar flexible working arrangements. He had a long commute to work (40 miles each way) and a son with health problems. Mrs Mitchell’s arrangements were in place for over 10 years when her manager revoked them. She was still offered flexibility however in relation to her start and finish times so that she could do the school run and working from home was permitted on an ad hoc basis once a week, to be agreed in advance.
After her grievance was rejected, Mrs Mitchell brought a sex discrimination claim stating that she had been treated less favourably than Mr Singh. The SRA argued that Mrs Mitchell no longer needed the same degree of flexibility because her children were now at school and other members of the team wanted to work flexibly. However the Employment Tribunal found there were inconsistencies with the evidence of Mrs Mitchell’s manager who had failed to show why she revoked Mrs Mitchell’s flexible working arrangements but not Mr Singh’s. The SRA were unable to provide an explanation for Mrs Mitchell’s treatment and were unable to discharge the burden of proving that the treatment was not influenced by reasons of gender. The Employment Tribunal held that Mrs Mitchell had been treated less favourably than Mr Singh and the EAT upheld that decision.
In addition to the problems of trying to revoke existing flexible working arrangements the Acas Guide advises against making “value judgments”. This might prove difficult in practice. Subconsciously or not, the person considering the request may think that some requests have more merit than others. For instance, a request from a single mother to reduce her hours may be treated differently to a request from an employee who wants more time to take up their new hobby. But what if that person was an older worker taking up a new hobby prior to a phased retirement? Perhaps employers will take more account of employees’ requests where the consequence of rejecting a request is a possible discrimination claim because of a particular protected characteristic.
To ensure fairness in the consideration process and to reduce the risk of claims, employers should ensure that it has a procedure in place for dealing with requests promptly and consistently. Training for managers who deal with flexible working requests will also help to ensure a consistent approach. Employers should carefully consider the business context and whether any business reasons apply that make it difficult to agree to the request. In those circumstances, employers should explain fully the reasons for their decision and where possible, consider any alternative arrangements that might satisfy both parties. It is essential that all discussions, meetings and decisions are properly documented.
Finally, don’t forget to review your flexible working policy as a matter of urgency. You will certainly need to extend the category of employee entitled to make an application if you haven’t done so already. But take a careful look too at any time periods specified as the process overall may fall outside the “decision period”.
If you want to find out more about any of the above issues, please do not hesitate to contact a member of the Employment team.