Flexible working: Are you ready?
On 30 June 2014, all employees with 26 weeks’ continuous service will be entitled to make a request for flexible working regardless of the reason. While the process will be less formal, employers will need to change their mind set when considering a request, as employees do not need a prescribed reason to make a request. An employee may just want an extra day in the garden or to play golf. If an employer has two competing applications, it is not for an employer to make a judgement as to the most deserving reason; each case should be considered on its merits looking at the business case of each. The eight specific business reasons for rejection remain unchanged.
Employers must nevertheless consider an application in a ‘reasonable manner’ and unlike the current prescribed process the only procedural requirement is for the request to be dealt with in a three month period, which includes dealing with any appeal. This time limit can only be extended if both parties agree.
An application must be made in writing, dated and state that it is a statutory request. It should specify the change to working conditions being sought and when they would like them to change. The employee’s request must provide an explanation of what effect, if any, the employee thinks the proposed change would have on the employer and how they feel any such effect might be dealt with. They must also specify if and when they have made a previous application. This is because as before, an employee may only make one application in a 12 month period.
The ACAS Code which is not compulsory, but sets out best practice suggests that employers should however have a policy providing for a meeting with the employee and to allow them an opportunity to be accompanied. This should therefore be included in your revised flexible working policy.
Employers should take care when considering their business reasons for rejecting an application so that they are not inadvertently discriminating against particular employees because of a protected characteristic. Prior to 30 June 2014 the focus was on whether, by rejecting a request an employer was indirectly discriminating because of gender. As anyone can now apply to work flexibly it is important to consider whether there could be a disadvantage to those with other protected characteristics, such as a disability or age.
It is advisable to review your flexible working policy or to put in place a non-contractual policy, as this will provide the company with a consistent approach which can be followed for all employees making a request.
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This publication gives general guidance only. It may not always apply and should not be relied on in place of specific legal advice. © Cripps LLP