Posted on 9.7.14 by David Walton
Until recently, it has been the right of every employee with caring responsibilities (and a minimum of six months’ service) to request a change to their working conditions, whether it be reduced hours, working from home, or some other arrangement. As of 30 June 2014, this right has been extended to all employees who have been employed for at least six months.
The changes to the flexible working regime also include a relaxation of the statutory procedure for making and dealing with flexible working requests, so that employers are no longer bound by strict deadlines for meeting with employees and responding to requests.
So, what are the changes likely to mean for you?
As an employee, you will be able to request a change to your hours/working conditions for any reason (provided you have been employed for at least six months). What some employees get confused about, though, is that the right to request flexible working does not amount to a right to demand it. The employer is within its rights to refuse any request provide that it does so for a genuine business reason (there are eight possible reasons that the employer has been given to choose from), which means that in practice it will not be difficult for an employer to find a valid reason to refuse.
As an employer, the administrative burden has been somewhat reduced, since there is no longer a statutory requirement for a meeting to be held with the employee to consider the request, and no longer short timescales for dealing with it, or an automatic right of appeal against a refusal. The ACAS guide, however, still recommends that a meeting takes place and that an appeal is afforded to an employee whose request is refused. ACAS guidelines are the benchmark of best practice, and are considered by Employment Tribunals when deciding whether an employer has acted reasonably in a given situation.
One pitfall that flexible working rules throws up for employers is their potential to give rise to discrimination claims. Widening the right to more employees can only make this situation more complicated. Imagine that two employees are doing the same job, and both make a flexible working request at the same time. One is a woman who wants to reduce her hours because of childcare commitments. The other is a man who wants to take up part-time studies. What happens if both requests cannot be accommodated? Should one or the other be given preference? If so, which one? What if it’s the man who has childcare responsibilities and the woman who wants to study part-time? If one employee is seen to be given preference due to sex, age, race, religion, etc, there is potential for a claim.
The question remains, then, will the changes make any difference? Will employers simply embark on an unwritten policy of rejecting all requests in order to avoid the potential for discrimination claims? Will employees be any more likely to have their requests accepted than before (when it was always open to any employee to agree a change to working hours by simply asking the employer on an informal basis)? Time will tell. For now the main benefit to the introduction of the new regime seems to be to raise awareness among employees and employers of the possibilities for flexible working and the business opportunities that flexible working can bring.