3 things you really need to know about changes to flexible working requests

The Flexible Working Regulations 2014 (2014 Regulations), which amend the Employment Rights Act 1996 (ERA) will come into force on 30 June 2014 and make changes to the right to request flexible working.

1. What are the changes?

The changes introduced by section 131-133 of the Children and Families Act 2014 are:

• the removal of the requirement to be a carer – this is by far the most fundamental change to flexible working requests and now extends to all employees and not simply to those employees that care for children under 17 (or 18 if the child is disabled) and to those employees caring for an adult dependant;
• the repeal of the statutory procedure for considering a request under the Flexible Working (Procedural Requirements) Regulations 2002 (2002 Regulations). This is replaced by a duty to deal with requests in a “reasonable manner” and underpinned by the Acas code of practice (Code) – Code of Practice on handling in a reasonable manner requests to work flexibly (in draft at the time of writing);
• the removal of the right to be accompanied to a meeting to discuss a request – although the Code and the Acas good practice guide (Guide) – Handling requests to work flexibly in a reasonable manner; an Acas guide recommend that an employee should be allowed to be accompanied to meetings to discuss flexible working requests;
• the removal of the requirement to hold an appeal meeting where the request has been rejected – although the Code recommends a right of appeal against such a refusal;
• the introduction of an overall time limit that a request must be considered within 3 months of receipt – before it was a staged process under the 2002 Regulations ie 28 days to hold a meeting on receipt of a request, 14 days to inform the employee of the decision, 14 days for the employee to appeal that decision, 14 days to hold an appeal meeting on receipt of the appeal and 14 days to provide the decision;
• the employer can treat a request as withdrawn if the employee fails to attend two consecutive meetings to discuss flexible working without good reason and if the employer informs the employee of the same under a new section 80G(1D) of the ERA; and
• an employee can present a complaint to an employment tribunal that the employer decided to treat the request for flexible working as withdrawn without having good grounds to do so.

2. What remains the same?

The 2014 Regulations do not change:

• the requirement that only employees can make a flexible working request;
• the requirement to have been continuously employed for 26 weeks;
• the requirement to make a formal written application;
• the limitation on only one application in any 12-month period; and
• the refusal of a request on valid business grounds within section 80G(1)(b) of the ERA.
• What does this all mean in practice for employers?

In reality the process will not dramatically change, as employers will effectively still have 3 months to consider a request and should allow employees to be accompanied to meetings and allow them a right of appeal against refusal of a request. However, employers will be allowed freedom from the straightjacketed stages of the statutory procedure and the Code recommends a simple 3-stage process:

• discuss the request with the employee;
• consider the request carefully; and
• deal with the request promptly.

In applying the 3-stage process, employers must act reasonably in the way in which decisions are made. The Code states: ‘You should consider the request carefully, looking at the benefits of the requested changes in working conditions for the employee and your business and weighing these against any adverse business impact of implementing the changes …’.

The grounds for refusal remain the same:

• 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; and
• planned structural changes.

As there is now a requirement for employers to act reasonably in dealing with flexible working requests, there is scope for employees to resign and bring a claim for constructive unfair dismissal on the basis that by not acting reasonably when considering the request, the employer is in breach of the implied term of trust and confidence.

As before, employers should record the reasons for rejecting a request.

Employers will have to be mindful of the fact there could be multiple and competing requests for flexible working. Although under the new regime all employees have the right to make a request, employers may wish to prioritise and give preference to certain employees’ circumstances, which could be that they are a carer. However, where an employer does prioritise it will still need to provide a valid business reason for the refusal of the request. Where employers have prioritised flexible working requests from competing employees, this may lead to unsuccessful employees alleging that they have been discriminated against because of a protected characteristic eg because the successful candidate was a woman.

In light of the changes, employers will probably want to amend their flexible working policies.

On the whole, the media bark may be bigger than its bite!