30th June 2014 saw the introduction of the new Flexible Working Regulations which will amend the current requirements for both making and considering flexible working requests under the Employment Rights Act (ERA) 1996.
The new regulations will make the right to request flexible working more readily available. The right will be extended from its current availability solely to carers and parents of children under the age of 17, to all employees. The existing eligibility criteria will however remain unaltered, i.e:
- The right remains available only to employees who have had at least 26 weeks’ continuous service with their employer
- Employees will continue to be limited to making only one flexible working request per year. However, the regulations do not prohibit a temporary change of less than one year being agreed between the employee and their employer.
From the employee’s perspective, the application procedure for a request to be considered will remain unchanged. To request flexible working an employee must therefore put in a written and dated application specifying the requested change to their work. The employee must state on the application the date on which their requested change to working will come into effect, and the proposed way in which the employee believes the impact of any change should be dealt with by the employer.
Despite the extension of the right to request flexible working to all employees, the impact of the new regulations will however be relatively limited in that the right remains solely to have a request considered; it will not create a right to work flexibly in itself.
However, from the employer’s perspective, the procedure by which a request should be considered will undergo substantial reform.
Currently under the ERA, an inflexible statutory procedure dictates an employer must adhere to numerous deadlines and notification requirements and processes when considering a request for flexible working. These formalities will be replaced with a simple duty to consider the request of an employee in ‘a reasonable manner’. Whilst the duty will be underpinned by a statutory code (ACAS: Code of practice on handling in a reasonable manner requests to work flexibly) which provides guidelines as to best practice, the code will be merely advisory and have no compulsory effect.
Employers will remain subject to some conditions as concerns their consideration of a request. A request will have to be responded to in writing within a 3 month time limit and supported by valid reasoning. Furthermore the extension of the right to request flexible working to all employees is likely to create an increase in requests received by employers. Faced with such an increase, employers are guided to take account of factors relevant to each employee in considering a request, although should remain aware of their obligations under The Equality Act 2010 to avoid any discriminatory decisions when considering multiple and competing flexible working requests.
The grounds on which an employer can refuse a request have not changed. A request can be rejected on grounds of ineligibility or subject to the employer providing one or more of the following business reasons:
- The 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.
- Planned structural changes.
Whilst the new regulations will undoubtedly make the right to request flexible working more readily available, the relaxation of the current procedure by which employers must consider requests will counter act any floodgate effect the extension of the right may create and allow employer’s significantly more flexibility when considering and rejecting requests.
In light of the changes, employers are advised to review any existing flexible working policies and update these accordingly.
For more information
If you would like further advice on the new flexible working regime, or any other employment issues please do not hesitate to get in touch with employment solicitor in Milton Keynes Maria Gallucci on 01908 202150.