Flexible working reforms – are you ready?
Employees are entitled to make one request for flexible working per year and employers are still legally entitled to refuse a request on ‘business grounds’. The grounds for rejecting a request for flexible working haven’t changed under the new legislation and include the following:
(a) the burden of additional costs;
(b) detrimental effect on ability to meet customer demand;
(c) inability to reorganise work among existing staff;
(d) inability to recruit additional staff;
(e) detrimental impact on quality;
(f) detrimental impact on performance;
(g) insufficiency of work during the periods that you propose to work; or
(h) planned changes.
In addition to extending the right to request flexible working to all employees with six months service, the new legislation replaces the current strict process with a general duty on the employer to simply consider requests in a ‘reasonable manner’.
What a ‘reasonable manner’ constitutes remains to be seen but will almost certainly include meeting with the employee to discuss the request in further detail, allowing the employee to be accompanied at any such meeting and having the meeting in private. Employers should still give careful consideration to the request, weighing up both the employee and the employer’s interests before coming to a final decision. If the employee disagrees with the employer’s decision they should be allowed the right to appeal and the whole process from receipt of application to appeal decision should take no longer than three months, unless agreed otherwise.
An employee may feel that a refusal may impact adversely because of, say, childcare responsibilities. Refusal of flexible working can give rise to ‘indirect discrimination’ claims which can be complex and costly to defend. If you have any concerns about the impact of the decision, speak to one of our Employment team.
Preparing for the change - what you can do
1. Look at and review your contracts of employment, policies and procedures and take out any reference to a specific process.
2. If flexible working is agreed and an employee’s hours change, their contract will need to be amended to reflect revised hours, holiday entitlement and pay.
3. Consider any health and safety issues. Where an employee works remotely or from home, employers must ensure that there is a safe working environment.
4. Consider the impact on other employees. For flexible working arrangements to work effectively, you need to ensure there is no added pressure to other employees, for example having adequate cover in place for an employee working shift patterns.
5. Adopt a consistent approach. All requests should be assessed on the same basis using the same criteria and as the legislation states in a ‘reasonable manner’. Familiarising yourselves with the ACAS ‘Handling requests to work flexibly in a reasonable manner’ can assist you.
6. Treat all employees equally. Regardless of the hours or work patterns in place for employees, they should be treated as favourably as each other. For example, less favourable treatment of part time employees than their full time counterparts will leave an employer open to a discrimination claim.
7. Keep records of meetings and details of anything agreed.
For more information and advice on any of the above changes, or any other employment law or HR matter, please get in touch with members of our Employment & HR Team.