UK: Flexible Working Requests – Important Changes From 30 June 2014

Last Updated: 10 April 2014
Article by Will Clift

On 30 June 2014 the rules governing flexible working requests will be changed in the following ways:

  • The right to request flexible working will be extended to all employees with 26 weeks' service
  • The statutory procedure which employers are currently obliged to follow when replying to a request will be replaced with an obligation to consider requests in a "reasonable manner"

Below is an explanation of how the new flexible working regime will work, along with some practical advice for employers regarding how to minimise the risks of litigation that can result from a rejected flexible working request, and some advice for employees who are looking to make a flexible working request.

Who is eligible to submit a request under the new rules?

Under the current rules, up until 29 June, employers are only obliged to consider requests for flexible working from employees who are caring for children aged 17 or under (or 18, if they are in receipt of disability allowance) or who are caring for adults in certain circumstances.

From 30 June 2014, all employees who have 26 weeks' service will be eligible to submit a flexible working request, regardless of whether they have caring responsibilities.

Are employers obliged to deal with requests from all eligible employees?

Employers should note that under the flexible working rules they are only required to deal with requests from eligible employees who have followed the correct statutory procedure in making their request. However, there are certain risks associated with ignoring a request, which are set out below.

The statutory procedure for making and replying to flexible working requests

Under the current rules, employers are obliged to follow a statutory procedure when dealing with a request which sets out when the first meeting to discuss the request must happen (within 28 days of the request) and when a decision has to be made by (within 14 days of the meeting).

When submitting a flexible working request, employees are also required to follow a specific statutory procedure. Employees should ensure that they follow this procedure carefully. If they don't, they run risk of the request not being considered by their employer. Guidance as to how to submit a request should be available from your employer or alternatively can be found on the ACAS website.

How should employers deal with requests under the new rules?

From 30 June 2014, the statutory procedure for employers set out above will no longer apply and employers will instead be required to consider requests in a "reasonable manner" and notify the employee of their decision within three months of the request, unless an extension is agreed.

According to a new draft Code of Practice produced by ACAS, in order to handle a request in a reasonable manner, an employer should usually hold a meeting with the employee to discuss the request and, having carefully considered the request, should also provide clear business reasons for any rejection.

The statutory procedure that employees must follow when making an application will continue to apply under the new rules.

On what grounds can a request be rejected under the new rules?

The new rules will not be changing the basis on which an employer is entitled to reject a flexible working request. These are:

  1. The burden of additional costs.
  2. Detrimental effect on ability to meet customer demand.
  3. Inability to re-organise work among existing staff.
  4. Inability to recruit additional staff.
  5. Detrimental impact on quality.
  6. Detrimental impact on performance.
  7. Insufficiency of work during the periods the employee proposes to work.
  8. Planned structural changes.

The rules grant employers a large degree of discretion in refusing requests and the test is wholly subjective. In other words, if the employer considers that one of the grounds applies, then the test is satisfied. It is only when the employer's view is based on incorrect facts that the decision can be challenged.

What are the risks for employers who reject a flexible working request?

As long as the employer deals with any request that it receives in a "reasonable manner" and determines that one or more of the 8 statutory grounds for rejection apply, it will be protected from a claim by an employee under the flexible working legislation.

Employers are also not obliged to consider requests from employees who have not followed the correct statutory procedure when making their request (as set out above).

However, in both instances, depending on the facts of the situation, an employer's refusal to accommodate a flexible working request may leave it vulnerable to a complaint of discrimination or a claim, regardless of the fact that it was permitted to reject (or ignore) the request under the flexible working rules.

For example, there may be a basis for an indirect discrimination claim under the Equality Act 2010. By way of illustration, an employer's refusal to grant the flexible working request of a woman with childcare responsibilities may amount to indirect discrimination as it arguably places women at a disadvantage as compared to their male counterparts (who on average have fewer childcare responsibilities).

In cases of indirect discrimination, employers can legally justify a discriminatory decision to reject a flexible working request if they can show that the decision amounted to a "proportionate means of achieving a legitimate aim". Broadly speaking, this means that in order to justify a discriminatory decision to reject a request an employer must:

  1. Identify a legitimate business aim (for example, ensuring that client demand is met).
  2. Achieve that aim in a proportionate way. This will require balancing the employer's aim against the discriminatory effect on the employee, as well as ensuring and that if there are two ways of achieving the same business aim, the least discriminatory way is chosen. In practice this will mean exploring a number of alternative flexible working options with the employee to try and find one that is acceptable to both parties.

If the employer can produce evidence that the two steps above have been followed, it should have a reasonable defence to any indirect discrimination claims that may be issued by employees. However, employers should note that acts of direct discrimination (except in the case of age) cannot be justified under the law.

Tips for employees making flexible working requests

Employees who are making flexible working requests should ensure that they:

  1. comply with the statutory procedure for submitting requests;
  2. carefully explain their reasons for making the request; and
  3. closely examine any refusal to grant a flexible working request and, if it seems unfair or discriminatory, or if one of the eight statutory reasons for rejection set out above has not been given, consider seeking legal advice.

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.

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