22nd July 2014

Legal Issues – The Right to Request Flexible Working

On 30 June 2014, the law relating to the right to request flexible working changed and it is no longer a requirement that the applicant be making the request in order to fulfil caring obligations. Any employee with 26 weeks’ continuous service, and who has not made such a request within the last 12 months, has the right to make a request.

The change in the regulations also removed the prescribed process for making and considering applications. Employers must deal with requests in a reasonable manner and conclude the process, including any appeal, within the “decision period” of 3 months from the date of the request.

Applications must still be made in writing, be dated and state that it is an application under the statutory procedure. They must also specify the change sought, explain the anticipated impact such a change would have on the employer and suggest possible ways to mitigate that impact and state whether the employee has previously made a request for flexible working including the date of such a request.

An employee may request a change to the number of hours worked, the times they are required to work or the place at which they are required to work.

The list of valid grounds on which an employer may refuse an application remains. Applications may only be refused for one of the following reasons:

• the burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to reorganise work among existing staff;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• insufficiency of work during the periods the employee proposes to work; or
• planned structural changes.

In the absence of a statutory procedure and no guidance as to what dealing with a request “in a reasonable” manner means, the ACAS Statutory Code of Practice (Handling in a reasonable manner requests to work flexibly) and Guide (The right to request flexible working: an Acas guide) are useful resources. In terms of ensuring reasonableness, it makes sense to retain elements of existing policies such as holding a meeting with the employee to discuss their application, allowing the employee to be accompanied at any meeting and providing the opportunity to appeal the decision.

Granting a request to work flexibly will result in a permanent change to the employee’s terms and conditions. The legislation makes no provision for trial periods although employers and employees are free to agree one. A trial period may be a sensible way to proceed where an employer is unsure if the requested change is one they can accommodate. If a trial period is agreed this will likely necessitate an agreement to extend the decision period.

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22nd July 2014