On 30 June this year, the government extended the right to request flexible working hours to all employees with 26 weeks’ employment, as part of plans to make the UK’s employment practices more flexible and family-friendly. Employees no longer need to be a parent or carer to request a change but they will still be limited to one request every 12 months.

When the right to request flexible working was introduced in 2003, many employers were concerned that large numbers of employees would apply and that it would be difficult for them to refuse a request. Ten years later most employers recognise the benefits that flexible working can bring, including increased productivity, improved staff morale and loyalty. Surveys have shown that employees value flexible working and are more likely to join an organisation, and remain with it, if it supports it.

Martin de Ridder, employment law specialist at Ansons Solicitors in Staffordshire, updates employers on the new procedure and outlines potential pitfalls.

The old rules

These were in place from 2003 and apply to any request for flexible working made before 30 June 2014. They allowed a qualifying employee to make a formal written request to work flexibly. To qualify, an employee had to have 26 weeks’ continuous employment and have a child under 17 or a disabled child under 18 or have caring responsibilities for an adult who was their spouse, civil partner, partner or relative who lived with them. They could ask for a change to their hours of work, times of work or place of work. For example, an employee could ask to work part-time or flexi-time, to work at home or to job-share. The employee could only make one request a year and, once agreed, the change became permanent.

Employers had a duty to consider applications and had to follow a complex statutory procedure. You could only reject a request for one of eight prescribed reasons. The most commonly used ones were: 

• the burden of additional costs;
• inability to re-organise work among existing staff; and
• insufficiency of work during the periods the employee proposes to work. 

If you were unable to agree to the change requested, it was advisable to try to reach a compromise with the employee, as the employee had the right to appeal if you rejected a request.

Where you failed to follow the right procedure or refused a request for a non-prescribed reason, the employee could bring a claim in the employment tribunal and could receive up to eight weeks’ pay. In some circumstances an employee might also be able to bring a claim for discrimination, where compensation is unlimited, or for constructive dismissal where the compensation is limited to the lesser of £76,574 or 52 weeks’ gross pay. This means that employers were advised to follow the right procedure and take legal advice if they were unsure what to do.

The new procedure

You will no longer need to follow the old statutory procedure and will be able to use your own HR procedure instead. You will, however, have to consider requests in a reasonable manner. Requests should only be rejected for one of the eight business grounds mentioned above. You will have to notify the employee of your decision within three months, unless you agree an extension. You can treat the request as withdrawn if the employee fails to attend two meetings to discuss the request or an appeal without good reason.

An employee can bring a tribunal claim within three months if you wrongly treat the request as withdrawn, you do not make a decision in time or you reject a request for a non-permitted reason.

ACAS guidance

The advisory, conciliation and arbitration service ACAS has produced a statutory code of practice on the extended right to request flexible working, which tribunals will have to take into account when considering relevant cases. It is very short and sets out the principles that employers should take into account when dealing with requests. Employers are advised to discuss requests with employees as soon as possible. They should consider requests carefully and weigh the benefits of the requested change for the employee and their business against any adverse impact. They should inform employees of their decision in writing and, if they reject it, give them the right to appeal.

ACAS has also published a non-statutory good practice guide, with practical examples of managing requests, to supplement the code.

Potential pitfalls

Two main issues arise under the new rules. Firstly, anyone with 26 weeks’ service can apply to work flexibly so it is likely that employers will receive more requests than before and may receive conflicting requests from different employees. For example, a parent whose child is about to start school may wish to work during term-times only and someone approaching retirement may wish to work part-time for a few years. Refusing either request could lead to a claim for a breach of the right to request flexible working, plus a claim for sex or age discrimination.

Secondly, the requirement to consider requests ‘reasonably’ may give rise to disputes as to what ‘reasonably’ means in practice.

Conclusion

The new regime should be simpler and give employers the freedom to operate their own procedure, provided it is reasonable and a decision is made within three months. You will need to update your flexible working policy to reflect these changes if you have not already done so.

If you would like some help with revising your policy or if you need advice on a flexible working request, please contact Martin de Ridder in the dispute resolution and employment law team, on 01543 431186 or email mderidder@ansonsllp.com. Ansons Solicitors has offices in Cannock and Lichfield, Staffordshire.