As discussed in our previous article on the changes to leave entitlements under the amendments to the Employment Relations Act 2000, the modern workforce has many different variations of working hours and arrangements.
The changes to leave entitlements reflect this, as do the changes to flexible working requests. Flexible working arrangements reflect the fact that even with varied shift patterns of work or ways of working for groups of employees, an individual may seek a specific change to accommodate a desire to balance work with personal activities.
Flexible working requests are for arrangements relating to the hours an employee works, the days and times an employee works or the location an employee works at. Flexible working requests are for a permanent change in an employee's working arrangement and can only to be changed by mutual agreement. Flexible working requests are not required for an occasional change to working hours or days.
The relevant changes to flexible working requests under the amendments to the Employment Relations Act 2000 are:
- Previous situation: Need to have care of any other person.
- Amendments: Anyone can make a request for flexible working hours.
- Previous situation: Requirement to have been in the role for 6 months.
- Amendments: Can make a request at any time.
- Previous situation: An employee could only make 1 request in a 12 month period.
- Amendments: Now no limit on the number of requests an employee can make.
In general, the amendments simply mean any employee can request flexible working arrangements, at any time and as often as they like.
The other key change is that employers must now respond to a flexible working request within 1 month (this was previously a 3 month period). The part that hasn't changed however is the basis for assessing a request; the grounds listed in s69AAF(2) of the Employment Relations Act 2000 remain as the relevant criteria. These grounds include such things as the inability to reorganise work or recruit additional staff, detrimental impact on quality, performance or customer demand, and cost.
So, in our opinion, it appears that not much has changed in respect of employers' obligations when considering a request but there is likely to be an increase in the amount of requests employers receive. This may impact on how employers decide who will be given flexible working hours. Will it be on a first in first served basis? Does the increase or potential increase in applications mean an employer should consider the bigger picture to ensure all employees are being treated equally and ensure that there are no issues of disparity or discrimination?
In some respects the easing of the requirements for employees for making a request for flexible working may in the end mean an employer will have great pressures to balance when making decisions about granting such requests.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.