Most employers are familiar with the procedure to be applied when dealing with flexible working applications which have been around, on a legislative basis, since 2003. Initially the right to request flexible was confined to the parents of children under six or of disabled children under 18.
In 2007 the right was extended to carers of adults and in 2011 to parents of children under 18. With effect from 30 June 2014 the right is extended to all employees who have 26 weeks’ continuous employment at the time the application is made. Only one application per year may be made.
As a result, now is a good time to recap the key elements of fairly handling a request for flexible working. The first thing to bear in mind is that the entitlement is to request flexible working rather than an entitlement to flexible working on request. Nonetheless, employers must take request for flexible working seriously. What does that mean in practice? If an application is refused then the employer may be required to justify the decision, both in terms of the steps taken to consider it and the substantive reason for rejection.
According to the ACAS draft guidelines valid reasons for rejection may include:
- Burden of additional costs
- Inability to reorganise work among existing staff
- Inability to recruit additional staff
- Detrimental impact on quality
- Detrimental impact on performance
- Detrimental effect on ability to meet customer demand
- Insufficient work for the periods the employee proposes to work
- Planned structural change to the business
However, employers should bear in mind that it is not enough to give the reason; if called upon to do so the employer may be required to justify the reason.
It is also important to consider the different types of flexible work that might be available or appropriate, including:
- Part-time working
- Flexi-time – scope to change work hours outside of “core” business periods
- Working from home or remotely
- Compressed hours – for example, fitting a five-day week into four days
- Term-time working – paid or unpaid leave during school holidays
- Annual hours – agreed hours split into “set” and “reserve” shifts, worked as demand dictates
There are certain types of work that just aren’t suited to flexible working and a good example is shift working. Where there are established shift patterns the employer will nearly always be able to demonstrate a disproportionate impact on organisation of work and performance that will justify refusal.
Taking into account the need to demonstrate fairness, we still recommend use of the statutory forms, available to our subscribers and here.
The changes bring with them the risk of potential pitfalls for the well-meaning but unwary employer. For example, giving priority to parents or carers will amount to unreasonable refusal of a request by a non-parent or carer. Equally refusing a request by a woman but allowing a similar request by a man is likely to amount to indirect discrimination because it is generally more difficult for women to accommodate full time working arrangements than men. The room for potentially costly mistakes to be made is obvious.
It is also worth bearing in mind that, from 2015, mothers and fathers will be able to share 12 months’ “maternity” leave. The only rule (apart from that only the mother can take the first two weeks following the birth) is that only 12 months can be taken in total, of which nine months will qualify for “maternity” pay. Do your contracts take into account the possibility that men might claim maternity leave (in addition to paternity leave and/or parental leave?). This is something that you should be planning for now. If you want any further guidance then please do not hesitate to contact one of our employment lawyers who will be pleased to assist. It is also worth consulting the guidance available from ACAS.