The right to request flexible work is currently limited to employees with responsibility for children, and employees who care for certain adults. Next month, a Bill giving all qualifying employees the right to make a flexible working request will gain Royal Assent. The government had initially proposed to bring in the new provisions in April 2014, but this has now been delayed until a date expected to be later in the year.

The new right for all employees

The Bill proposes to:

  •  extend the right to request flexible working to all employees;
  •  maintain the 26 week qualifying period of employment;
  •  keep the restriction of only one request in any 12 month period;
  •  scrap the statutory procedure for dealing with a request for flexible working;
  • substitute the statutory procedure with a requirement that the employer "deal with the application in a reasonable manner";
  • requirethe employer to give its decision to the employee within three months of receipt of the application (or longer if agreed by the parties); and
  • keep the same business reasons to justify a refusal of the request.

ACAS has produced a draft Code which sets out what employers should do on receipt of an application.  The Code will amount to guidance on what it means to "deal with the application in a reasonable manner" meaning that any failure to follow the Code will have adverse consequences for the employer if the employee brings a claim. 

The Code gives the following guidance:

  • the employer should arrange to speak with the employee to discuss the proposal as soon possible after receiving the written request (unless it decides to grant it immediately);
  • the employee should be allowed to be accompanied by a work colleague at any discussion;
  • the employer should approach the request on the presumption that it will be granted unless there is a business reason for not doing so;
  • the employer should consider the request carefully and weigh up the benefits both for the employee and the business against the cost of implementing any changes;
  • decisions should be confirmed as soon as possible in writing;
  • if the employer accepts the request, or accepts it with modifications, the employer should discuss with the employee how and when the changes may best be implemented;
  • if the employer rejects the request it must do so for one of the business reasons as set out in the existing legislation (namely: cost burden; inability to reorganise work or recruit staff; detrimental impact on quality or ability to meet customer demands; a lack of work during the relevant working period; or planned structural changes); 
  • the employee must be allowed to appeal; and
  • the employer should consider and decide all requests, including appeal, within three months from receipt of the request, unless an extension of time is agreed with the employee. 

ACAS will also publish non-statutory "good practice guidance" which will expand upon the Code and give examples of how an employer should manage flexible working requests.  Employers will need to prepare for a potential increase in flexible working requests and consider the practicalities of this for their businesses. 

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.