Flexible Working Conditions
We detail the new laws regarding flexible working conditions, which came into effect on 30 June 2014.
Employees have the right to request flexible working conditions, being either a change in the start/finish times, a change in hours worked or working from home. For example, an employee may seek compressed hours, flexitime, shift working or unpaid leave for school holiday periods.
Before 30 June 2014, the right only applied to parents of children under the age of 17 (or 18 if the child is disabled) and certain carers.
Since 30 June 2014, statute determines that every employee with at least 26 weeks’ employment service has the right to request flexible working. This is supported by an ACAS Code of Practice and Guidance Note. The provisions do not extend to agency workers.
Making a Request
An employee can only make one request in any 12 month period, unless the employer agrees voluntarily to accept additional applications. The application to the employer must:
- be in writing and be dated;
- state that it is made under the statutory right to apply for flexible working;
- detail the proposed change and when it should take place;
- explain what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with;
- whether they have made any previous request and if so, when; and
- whether the request is being made in relation to the Equality Act 2010.
Requests should be dealt with by the employer in a reasonable manner within a 3-month decision period, unless an extension is agreed by both parties.
Should an employee’s request be accepted, the employer should implement the change as soon as is reasonably possible, notify the employee of the new terms and update the contract of employment. We are happy to assist with varying contracts.
Refusing a Request
Employers can only refuse an eligible request for one of the following business reasons:
- the burden of additional costs;
- an inability to reorganise work amongst existing staff;
- an inability to recruit additional staff;
- a detrimental impact on quality;
- a detrimental impact on performance;
- detrimental effect on ability to meet customer demand;
- insufficient work for the periods the employee proposes to work; or
- a planned structural change to the business.
If an employer relies on the above to reject a request, a meeting should be held within a reasonable time for the employer to explain the reason to the employee. Alternative solutions may also be discussed.
Although the employee does not have a legal right to be accompanied in that meeting, ACAS encourages employers to provide the option. If the employee’s chosen representative is unavailable, the meeting should be postponed and rearranged within 7 days.
Following the meeting, the employer should set out the reasons for refusal and the outcome in writing to the employee. The employee should be informed of the right to appeal and if the employee takes up this opportunity, an appeal meeting should be held, ensuring that the overall 3 month decision period is adhered to. The discussions and the outcome of the meeting should again be confirmed in writing to the employee thereafter.
Employers should be aware that if the request is deemed to be improperly dealt with, the employee may seek to bring one (or more) of the following actions:
- Apply to the employment tribunal who could require the employer to reconsider the request and/or pay an award to the employee of up to eight weeks’ pay, subject to the statutory cap on a weeks’ pay.
- A claim for indirect sex discrimination if the refusal discriminates against one sex or the other. For example, a man may be discriminated against if he is not granted part time working conditions following the birth of his child, where a woman in the same position would have succeeded with her request.
- A claim for discrimination if it can be shown an element of the refusal was based on the employee’s sex, race, religion, sexual orientation or disability.
- A claim that the employer’s unreasonable refusal constitutes a repudiatory breach of contract, enabling him/her to resign and claim that they have been constructively dismissed.
Therefore, careful consideration should be given to every application and the employer should not seek to compare the merits of one employee’s request against the request of another, but instead focus on the needs of the business.
Employers should check existing policies and employee handbooks to ensure that they are compliant with the changes set out above. We are happy to carry out this review for you and make any changes necessary.
If you have any questions about the contents of this bulletin or require more detailed information, please contact James Johnson.