Know your rights for Flexible Working

’Working 9-5 what a way to make a livin’’.

(Lyrics© Warner/chapel Music Inc).

Flexible Working- The new game from 20th June 2014:

Unlike Dolly Parton, whose popularity at Glastonbury at least, remains undiminished, the standard working days/week/year seems to be losing popularity. Deputy Prime Minister Nick Clegg’s heralds the new regime which came into force 30 June 2014, by telling us that time has arrived for working practices to be brought up-to-date with the needs and choices of modern families.

Acas (an organisation devoted to resolving employment issues) highlights the need to meet growing demand from employees and employers in order to achieve a better work balance. On the premise that a happy workforce is a productive workforce and perhaps because a happy workforce is a stable workforce, the changes should hopefully be beneficial.

Small businesses (many of which already informally allow flexible working) complain however of an additional regulatory burden. But as we will see below the changes are manageable and as long as handled correctly and meaningfully will soon become an unremarkable and quite normal aspect of working life. Another view has been expressed by TUC general secretary France O’Grady who suggests that the new regime may benefit those wishing to take time out for further training and/or to undertake volunteering activities.

Flexible working is far from a new concept that has been an option for many years for parents with dependant children, or those with caring responsibilities. The new rules extend the constituency of those entitled to request flexible working changes to their contracts of employment. The right to make a request only applies to employees and not, for example consultants.

Who qualifies and what are the restrictions?

  • A formal written request can only be made by an ‘’employee’’. This means that agency workers and consultants are excluded.

  • The employee must have 26 weeks' continuous employment at the date the request is made.

  • Only one request under the statutory scheme may be made in any 12-month period. It is worth noting that turther informal requests may be made outside of the regime.

A qualifying employee may request a variation of employment terms as long as the variation relates to:

  • A change to the hours they work.

  • A change to the times when they are required to work.

  • A change to the place of work (as between their home and any of the employer's workplaces).

The scope of the legislation is actually very wide and might encompass applications for:

  • School term-time working;

  • Part-time working;

  • If currently part-time full-time working;

  • A fixed number of hours per annum;

  • Condensing hours;

  •  Flexi-time;

  • Working from home;

  • Job-sharing

  • Shift-working; and

  • Staggered hours.

Practical Difficulties

Any agreed changes represent a permanent change to the contract of employment. It would however be perfectly possible for employer and employee to agree a temporary change e.g. cover a bereavement, sabbatical or to permit study leave on the basis that the original contract terms revert at or shortly after the expiration of the event. Likewise, although the legislation is silent on the point there would be nothing to prevent employer and employee agreeing to change on a “trial period” basis.

Competing needs of one or more employees making an application have to be carefully considered, employers have to avoid suggestion of discrimination. There is an overriding responsibility on the employer to deal with the request in a ’’reasonable manner”. There are grounds for refusal and an employer will need to have regard to the impact upon colleagues and the impact of change on the business.

Grounds for refusal

Grounds for refusal under the new regime are:

  • 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.

The process

Importantly the right is not an entitlement to change the terms of the contract of employment rather a right to make the request. As long as the procedure is followed and as long as the employer is able to advance legitimate reasons/objections based on fact the request may be refused.

The overriding obligation on the employer is to consider the request “reasonably”.

The Employment Rights Act contains no direct guidance but Acas has published helpful guidelines intended to benefit both employer and employee. The guidance, ‘’The right to request flexible working: an Acas guide’’ is available from the Acas website and contains numerous scenarios. A failure to follow the recommended practice will need to be justifiable.

The procedure begins with the employee making a written request. The request must be dated and contain the following:

  • Confirmation that the application is a statutory request (Section 80F (2), Employment Rights Act 1996 and regulation 4, Flexible Working Regulations.);

  • The change that the employee is seeking and when they wish the change to take effect.

  • what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with; and

  • Set out the date of any prior flexible working request.

The decision period is either 3 months from the date of the request or such extended period as may be agreed. If the request is granted then the employer is obliged to issue a written statement of changes to the employee's terms and conditions that have been provided within one month of the changes taking effect. If the request is refused then the business reasons must be based on fact and should fall within the reasons listed above.

Employers should ensure that they have a fully compliant Flexible Working Policy to limit the risk of claims against them.

Consequences of breach by the employer

An employee who unreasonably refuses a request for flexible working  may be taken by the aggrieved employee to an Employment Tribunal and if the Tribunal adjudges a breach of the statutory provisions might it must make an award against the employer of 8 weeks’ pay (subject to the statutory maximum as at July 2014 of  £464.00).

The usual three month limitation period (suspended during any Acas attempt at conciliation) applies after which time generally speaking any right to make a claim will become statue barred and will be rejected by Employment Tribunal. 

 

Any queries relating to the above summary should be addressed by email to Mike Smithson at mike.smithson@tvedwards.com