Right to flexible working extended

The Children and Families Act 2014, which received Royal Assent on 13 March 2014, will introduce a number of changes to employment legislation, including to those parts which relate to the right to request flexible working. (For information about other changes introduced by the Act, see shared parental leave and pay link and time off for antenatal appointments link).

The existing rights and obligations

Currently, the right to request flexible working is granted only to employees who:

• have at least 26 weeks’ continuous service;

• are not agency workers or members of the armed forces;

• have not already made a flexible working request in the previous 12 months; and

• are making the request in relation to a child under the age of 17 (or 18 if the child is disabled) and are either the child’s parent or the spouse/civil partner of the child’s parent, or

• are making the request in relation to an adult whom they care for and who requires care, and who is their spouse/civil partner or relative, or lives at the same address as they do.

Such employees have the right to make a flexible working request i.e. to their hours, times or place of work. The application must be in writing and include certain information (e.g. the change they are seeking and the date that they would like it to come into effect). The employer is then required to follow a statutory procedure when considering the request and to consider the request properly, and may only refuse it on one or more of eight specified grounds.

The statutory procedure is complex and prescriptive, requiring both the employee and the employer to take certain steps and provide certain information, within certain time frames (albeit, the penalties for a purely procedural breach are limited). The key steps are:

• Employer to arrange a meeting with the employee to discuss the request, within 28 days of the request being submitted (the employee is entitled to be accompanied by a colleague);

• Employer to inform the employee of its decision, within 14 days of the meeting;

• If appropriate, employee to appeal in writing, within 14 days of the decision;

• Employer to arrange an appeal meeting with the employee, within 14 days of the appeal;

• Employer to inform the employee of the appeal outcome, within 14 days of the appeal meeting.

For more information about the current rules, see flexible working request link.

Changes from 30 June 2014

From 30 June 2014 (it was originally going to be 6 April 2014 but was later postponed), the following changes will come into effect:

• The right to request flexible working will be extended to all employees with at least 26 weeks’ service, whether or not they are parents or carers and regardless of the reason for their request;

• Employers who receive a request will no longer be required to follow a statutory procedure. They will only have to consider the request in a “reasonable manner” and to consider the whole request (including any appeal) within three months of the date when the original request is received, unless an extension is agreed;

• Guidance as to what is “reasonable” will be provided by a new ACAS Code (‘Handling Requests to Work Flexibly in a Reasonable Manner: an ACAS Guide’). The ACAS Code will be taken into account by Tribunals when deciding whether or not there has been a breach of an employee’s right to request flexible working. Helpfully, the ACAS Code uses the word “must” to indicate which steps are legal requirements and the word “should” to indicate those which are merely considered to be good practice.

The steps recommended by the ACAS Code are essentially the same as those required by the statutory procedure, i.e. meeting with the employee to discuss the request, allowing the employee to be accompanied to such a meeting by a colleague, informing the employee of the decision, and allowing the employee opportunity to appeal if desired.

Other aspects of the right to request flexible working legislation will remain the same. For example:

• Employees must still make the request for flexible working in writing and include certain information;

• Employees will still be restricted to one statutory request in any 12 month period;

• Employers may still only refuse a request on one or more of the same, eight specified grounds. These are reproduced, and explained, in the ACAS Code.

In addition, as now, there will be no limit on the number of non-statutory requests for flexible working which an employee may make. A failure to consider, or a refusal of, either a non-statutory or statutory request may, in certain circumstances, amount to unlawful sex or disability discrimination or entitle the employee to resign and claim constructive unfair dismissal.

Employers may wish to update their flexible working request policies and train their managers on the new rules, if they have not already done so. The ACAS Code recommends that employers consider introducing a policy for handling requests to work flexibly, and that it do so in consultation with employees and any recognised Trade Union.