Everyone can now request flexible working

Paul Kelly

Paul Kelly

Flexible working relates not least to working from home, flexi-time and job sharing. Before 30 June 2014, parents of children aged 16 or under and those with disabled children under the age of eighteen had the right to apply to work more flexibly if they had worked for their employer for at least 26 weeks and had not made any application to work flexibly during the past 12 months of employment.

When is the law changing?

From 30 June 2014 changes will come into force making many more employees eligible to request flexible working. The current statutory procedure for dealing with requests will also be replaced by a fairer ‘duty to consider all requests in a reasonable manner’.

Am I eligible?

To make a request you will now need to:

  1. be an employee;
  2. have 26 weeks continuous service with your employer; and
  3. not have made a formal request to work flexibly during the last 12 months.

How to make a request?

In order to make a request for flexible working, eligible employees will need to:

  1. state that they are making a flexible working request in writing;
  2. explain the reasons for their request;
  3. provide as much information as they can about their current and preferred working pattern, including working days, hours and start and finish times giving the date from which they would like the changes to take effect;
  4. identify the likely effects of those changes on their working pattern will have on their employment; and
  5. provide information to confirm that they meet the eligibility criteria.

Handling requests

The next step, once a request has been made, is for the employer to arrange a meeting where discussions can take place relating to the request. This is not a statutory requirement but is good practise, as is letting the employee be accompanied by a colleague or trade union representative.

If an employer has already accepted a request, then a meeting may not be needed, but may still be useful. The process must be completed within three months of receipt of the request and any accepted change will need to be incorporated into the employee’s contract of employment.

Requests should only be refused if there are good business reasons for doing so due to:

  1. the burden of additional costs;
  2. the inability to reorganise work amongst existing staff;
  3. the inability to recruit additional staff;
  4. a detrimental impact on quality;
  5. a detrimental impact on performance;
  6. a detrimental effect on ability to meet customer demand;
  7. insufficient work for the periods the employee proposes to work; or
  8. a planned structural change to the business.

Resolving a dispute

ACAS has provided supplementary information and advice relating to how employers should handle requests to work flexibly. If the dispute can’t be solved within the workplace the employee has numerous options, from using the employer’s internal grievance procedure to seeking assistance from ACAS.

If the employer accepts the request, or accepts it with modifications, the employer should discuss with the employee how and when the changes might best be implemented. If the employer rejects the request, it must be for at least one of the above eight business reasons. An explanation of these reasons must be given to the employee.

The Statistics

Working from home is the most common flexible working request with an estimated 55% of employees requesting this option prior to 30 June 2014. Women are also currently more likely than men to use flexible working with an estimated 77% of women working flexibly in some way.

Currently, around 96% of employers already offer flexible working and from the 30 June 2014 this will soon become closer to 100%. This also reflects changes in legislation regarding ‘Parental Leave’ which come into force in April 2015.

The changes in flexible working may also impact the Employment Tribunal with the government estimating an increase of more than 50% on flexible working claims. For the employer the average cost in defending a claim amounts to approximately £5,900. This comes soon after controversial fees were introduced in the Employment Tribunal in July 2013 which has had a huge impact on the system and only time will tell whether such substantial changes will be sustainable.
Paul Kelly
Partner
Employment Department
PKelly@LawBlacks.com
0113 227 9249
@PaulLawBlacks

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