INFORMATION

UPDATE

FLEXIBLE WORKING

The Flexible Working Regulations 2014 come into force today, 30th June.

The right to make a request for flexible working is no longer only available to parents of children under 17 (or 18 if disabled) and certain carers but it is now available to any employee who has been employed for 26 weeks.

THE PROCEDURE

The basic right to request is unchanged. Employees can make up to one written request every year, to change their working hours, and/or place of work (e.g. working from home for example). The employee’s written request will still need to say:

(i) what effect, if any, they think the requested change would have on the employer and how, in their opinion, any such effect might be dealt with; and

(ii)  a statement that this is a statutory request; and

(iii) if and when they have made a previous application for flexible working.

Upon receipt of a request, the employer will need to deal with it within three months.  This means considering the request and if necessary having a meeting to discuss the request with the employee (who is allowed to be accompanied by a work colleague).  An employer should consider the request carefully, looking at the benefits of the requested changes in working conditions for the employee whilst weighed against any adverse business impact of implementing the changes.

Legitimate 'Turn Downs' 

The employer can refuse the employee’s request for one (or more) of the following business reason:

• 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
• a detrimental effect on ability to meet customer demand
• insufficient work for the periods the employee proposes to work
• a planned structural change to your business

The decision, once made, should be communicated to the employee as soon as possible in writing to avoid future confusion on what was decided.

If the employee’s request is accepted, or accepted with modifications, a discussion with the employee is usually required on how and when the changes might best be implemented.

If the employee’s request is rejected, it is good practice to discuss the reasoning behind the decision to reject the application with the employee; which also provides the opportunity for the employee to reveal new information or an omission in following a reasonable procedure when considering the application. You should allow your employee the opportunity to appeal the decision.

ENFORCEMENT

Whilst an employee could bring a claim before the Employment Tribunal for breach of the Flexible Working Regulations, a tribunal cannot normally investigate the rights and wrongs of the refusal, only whether the procedure has been properly followed. Maximum compensation for a failure to comply is eight weeks' pay (currently capped at £464 per week).  However, an employee might also claim that the decision to refuse their request is a discriminatory act, and/or a fundamental breach resulting in the employee resigning and claiming constructive dismissal.  Therefore an employer is encouraged to take professional advice before making a decision to reject an employee’s application for flexible working.