The Government has confirmed it is extending the right to request flexible working to all employees, but the changes won't be implemented until 2014
Back in 2010 the Coalition Agreement contained a commitment to extend the right to request flexible working to all employees regardless of whether they had childcare or other caring responsibilities. The Modern Workplaces consultation was published on 16 May 2012 and included proposals to implement that commitment. The Government has now issued its response to the consultation, but it appears that we will have to wait a bit longer for the changes to actually take effect.
The right to request flexible working was first introduced for parents of children under 5 (or 18, if disabled) in April 2003. This was extended to carers of certain adults in April 2007 and to parents of children under 17 in April 2009.
The current position
The right gives employees (but not other types of workers) with 26 weeks' continuous employment the right to request a permanent variation to their contract of employment to enable a different pattern of working. Flexible working may take whatever form the employee suggests such as job sharing, part-time or term-time working, annualised hours or a change to working hours.
There is a statutory procedure to consider such requests which employers must follow. Requests can only be refused on prescribed business grounds. Employees can bring claims in the employment tribunal if the employer fails to consider their application in accordance with the statutory procedure or rejects it on the basis of incorrect facts. An employee who succeeds in such a claim may be awarded up to 8 weeks' pay.
The Government has confirmed that:
- The right to request flexible working will be extended to all employees regardless of caring responsibilities.
- The 26 week qualifying period will be retained.
- The statutory procedure for considering such requests will be abolished and replaced with a duty for employers to deal with requests "reasonably" and within a "reasonable time". A statutory Code of Practice will be drawn up by ACAS to assist employers in respect of this new duty.
- The Code of Practice will be supported by guidance to include advice for employers on prioritising conflicting requests received at the same time and how employers can handle temporary changes to working patterns.
- The current provision which restricts the number of requests for flexible working that an employee can make in any 12 month period to one only will be retained.
- Micro businesses (those with less than 10 employees) will not be exempt from the extension to the right to request flexible working in order to avoid a "two-tier" system.
This will require primary legislation and thus time will have to be found in the Parliamentary timetable. The Children and Families Bill is expected to be introduced in 2013 to implement the changes. A consultation on the new Code of Practice is also expected next year. However, the Government's response suggests that implementation will not actually happen until 2014.
Employers have at least a year's grace to prepare themselves for these significant changes. The group who seem most likely to take advantage of the extension of the right to request flexible working are older employees who may be looking to reduce their working time while not retiring altogether. Employers need to assess their workplace structures and think radically about how they might accommodate a considerable increase in requests to work flexibly.