For requests made on or after the 30 June 2014, the right to request to work flexibly has been extended to all employees after 26 weeks’ continuous service for whatever reason (as opposed to assist purely for those with parental or other caring responsibilities). These changes have been implemented by the Children and Families Act 2014.
A qualifying employee has a statutory right to make a written request to work flexibly and on receipt of such request you have a legal duty to consider it. Although this means that any request for flexible working has to be considered very carefully and dealt with in a reasonable manner, it does not mean that employees have an automatic right to work flexibly. You may have very good business reasons as to why you cannot agree to your employee’s request. If a formal request to work flexibly is approved this will result in a permanent variation to the terms and conditions of employment for that employee.
An employee wishing to make an application to work flexibly must do so in writing and must include certain specific information including:
- the date of the application, the change to their working terms and conditions that they are seeking, and when they would like this change to be implemented;
- the effect that the employee feels this change may have on you as the employer and how this may be dealt with; and
- a statement that the application constitutes a statutory request and if/when they have made a prior application.
Discuss the request
Once you have received a written request it is recommended in the ACAS Code that you should arrange to meet with the employee as soon as possible to discuss the request. The meeting should be held in a private place where possible.
Consider the request
As an employer you are legally required to consider the proposed request and the ACAS Code states that you should assess the likely benefit to the employee and the business against the possible negative impact on the business. Once you have made a decision, you will need to inform the employee as soon as is possible and it is best practice do so in writing in order to avoid confusion later.
If you accept the request, or accept it with proposed modifications, then you will need to discuss the best way to implement the changes to the terms and conditions of employment and the date that the changes will come into effect.
Appeals
If you decide to reject the application, you will need to inform the employee of this decision. Although there is no longer a legal requirement to allow an appeal meeting to take place, the ACAS Code states that if new information comes to light or if the employee believes that the application was not handled in a reasonable manner and in accordance with the employers flexible working policy, then an appeal should be allowed and the employee should be informed of this. Any appeal should be dealt with as quickly as possible. Again, the ACAS Code states that it is best practice to allow the employee to be accompanied to the appeal meeting.
The request to work flexibly can only be rejected for one or more specified business reasons as set out in legislation.
The new legal requirement is that a request to work flexibly (including any appeal against a rejection of the application) must be completed and decided upon within the ‘decision period’ of three months of the date that the first application was made. This time frame can be extended if both parties agree.
Only one request may be made within any 12 month period, and if approved, the result will be that contract of employment will be permanently varied for that employee.
The law on flexible working only gives an employee an opportunity to request flexible working, it does not give them an absolute right to work flexibly. There are a series of specific business grounds on which you are entitled to turn down an application. The reasons are as follows:
- 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 performance;
- Detrimental impact on quality;
- Insufficiency of work during proposed hours;
- Planned structural changes.
