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What does the new flexible working legislation mean for your business?

14 Aug 2014

Sarah Furness, employment law specialist at Hay & Kilner provides an update on the changes to the law on flexible working.

Who can request flexible working?

ALL employees with 26 weeks’ service can now request flexible working as of 30 June 2014.  Employees no longer need to have children or be carers. Employees can still only make one formal request under the legislation once every 12 months, albeit there is no reason why employees can’t make additional informal requests.

Is there a new procedure?

The statutory flexible working procedure has been abolished and employers are now under a duty to consider requests in a ‘reasonable manner’. A decision must be made within 3 months (although this can be extended with the employee’s agreement).

Although the statutory procedure has been abolished, there is a new ACAS Code of Practice on Flexible Working which sets out the  procedure employers should follow. Tribunals, when dealing with claims, must consider whether the Code has been complied with.

What do I do differently?

The main change is that you must consider requests from ALL employees. Your flexible working policy will need to be amended to provide for this and the other changes, such as the need to consider requests in a ‘reasonable manner’.

In terms of the procedure to be followed, a similar procedure to the existing procedure should be followed due to the ACAS Code. For example, you should still meet with employees promptly to discuss their requests, offer them the right to be accompanied by a colleague at meetings and offer them the right to appeal your decision.

On what grounds can you refuse requests?

Requests can only be declined on one or more of the following grounds:

  • Burden of additional costs;
  • Detrimental effect on ability to meet customer demand;
  • Inability to reorganise work among existing staff;
  • Inability to recruit additional staff;
  • Detrimental impact on quality;
  • Detrimental impact on performance;
  • Insufficiency of work during the periods the employee proposes to work; and
  • Planned structural change.

What claims can be pursued?

Employees can pursue claims in the Tribunal for 8 weeks’ pay if their claims have not been dealt with appropriately. For example, if their application was not dealt with in a ‘reasonable manner’ or if their application was rejected for a reason other than one of the above 8 grounds.

More importantly however is that employees can pursue other claims if their flexible working requests are rejected such as constructive dismissal and discrimination claims. It is common for disgruntled employees, who wish to work flexibly to care for children, to bring claims under sex discrimination legislation. Female employees often bring indirect sex discrimination claims on the basis that women have the greater burden of childcare and failing to allow flexible working would have a disproportionate impact on women. Tribunals readily accept such arguments.

It is therefore essential that an employer justifies on solid business grounds why it cannot accommodate an employee’s flexible working request. Seeking legal advice from the outset is recommended.

For further information or advice, please contact Sarah Furness on 0191 232 8345 or email: Sarah.Furness@hay-kilner.co.uk