The 'New' Flexible Working Regime

The 'New' Flexible Working Regime


Author: Michael Briggs

Following considerable consultation on whether to extend the statutory right to request flexible working to all employees, regulations published recently confirm that the statutory framework will change on 30 June 2014. Are you ready?

Why flexible working?

Given the economic downturn (which is hopefully now improving) and the general needs and wants of the overall workforce, UK employers have been forced to be flexible, or at least more flexible, in recent years. Flexible working is not, however, just about part-time working or job sharing. There are many ways in which flexible working can be achieved, through the use of, or a combination of, many possible working arrangements. This could include:

  • Flexi-time working arrangements
  • Annualised working hours
  • Term-time working
  • Compressed working hours
  • Home or other forms of remote working (with the assistance of improved technology)
  • Sabbaticals and/or career breaks

There are many benefits to flexible working to both the employer and employee, including improved morale and productivity, better work-life balance, enhanced staff retention, wider recruitment opportunities, an overall reduced cost base and improved profitability. Yet, some employers still struggle with the premise of employees requesting to work more flexibly.

So what's actually changing?

From 30 June 2014 it will no longer be a requirement that eligible employees need to have a child under the age of 17 (18 if disabled) or an adult in need of care in order to be able to make a statutory request for flexible working. Under the provisions set out in the Children and Families Act 2014, all eligible employees will have a statutory right to request flexible working regardless of their reason for doing so.

In order to be eligible to make a statutory request an employee will simply need to have been continuously employed for a period of 26 weeks as at the date that an application for flexible working is made, and not have made a statutory application for flexible working in the preceding 12 months.

The only other significant change is the removal of the requirement for employers to follow the current statutory procedure when considering a request for flexible working. Employers will be all too familiar with the prescriptive requirements to hold a meeting with the employee within a 28 day period followed by a series of 14 days compliance periods in which to lawfully deal with their request. That procedure will be replaced with a simple requirement that the employer considers a statutory request for flexible working in a reasonable manner (i.e. objectively and fairly) and notifies the employee of their decision within a three month period (unless an extension is agreed).

It remains the case that where an application for flexible working is accepted this will amount to a permanent variation of the employee's contract of employment. Employers should therefore confirm the new arrangements, and the date that they will take effect, in writing, whether by a simple letter varying contractual terms or by issuing a new contract of employment. The employee should also be reminded of the fact that they won't be able to make another statutory request for 12 months.

The eight statutory business reasons for rejecting a request also remain. These are:

  • The burden of any additional costs
  • Inability to recruit additional staff
  •  An inability to reorganise work among existing staff
  •  Detrimental impact on quality
  •  Detrimental impact on performance
  • Detrimental effect on the business' ability to meet customer demand
  •  Insufficient work during the periods the employee proposes to work
  •  Planned structural changes

Next steps and best practice

Before 30 June 2014, employers should ensure that any existing policies are amended to remove the eligibility requirements (i.e. the need to care for a child or an adult in need of care) and the current strict time limits for each stage of the existing statutory procedure. The latter should be replaced by a statement that an employee's request will be considered in a reasonable manner.

Any new or amended policies should also include:

  • How employees should make their application, setting out who the application should be made to and what should be covered (including the date of the application; that they are making a statutory request; the change to working conditions they are seeking; when they would like the change to come into effect; what effect they think the requested change would have on the employer and how the employer could deal with that effect and that they haven't made another request in the preceding 12 months)
  • A statement to the effect that the employer will consider the request fairly and will only reject it for one of the eight business reasons
  • Details of who can accompany the employee at any meeting regarding the request
  • The arrangements for any appeal
  • The time limits for dealing with requests, including the possibility of agreement to extend the three month time limit

In order to ensure requests for flexible working are dealt with fairly beyond 30 June 2014 employers should:

  • Follow their new / amended policy in a reasonable mannerApproach each request with an open mind, starting from a positive mindset that the request can be accommodated
  • Demonstrate serious consideration to each and every request made, including the reason(s) for it and how and it might be dealt with
  • Consider alternatives to the original request made - and whether there is there the possibility of a compromise where the original request cannot be accommodated
  • Where appropriate, deal with requests in a consistent manner
  • Maintain records of the process followed, including minutes of meetings and the reasons behind any decision to accept or reject the request
  • Explain all decisions fully and clearly to avoid upset
  • Avoid making decisions based on a protected characteristic such as sex, age, disability, etc

About the Author

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Michael Briggs

Senior Associate

0370 086 5066

Michael is an experienced employment lawyer who provides practical, commercial and results-driven advice to a wide range of clients in respect of disciplinary matters, redundancy & reorganisation, absence and performance issues, employment contracts & handbooks and executive appointment & exits. Michael also defends employment tribunal claims.

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