Flexible Working For All?

A new legislation in relation to Flexible Working has recently been introduced. The Children and Families Act 2014 took effect on 30 June 2014. In this article we consider some of the key provisions which will need to be reflected in your updated policies and company handbooks and the ways in which this might impact on your business.

Before the change, the right to request flexible working was restricted to employees caring for a child under 17 (or under 18 if the child is disabled).  This has now been extended to all employees with over 26 weeks’ service.  

Broadly speaking, the new rules mean that anyone can request to work flexibly, for any reason, simply by making a written request.  The employer then has a three month period to consider the request and hold any discussions with the employee before reaching a decision about whether or not the request can be granted.  Gone are the prescriptive provisions for holding meetings that applied under the old regime and, instead, employers only need to deal with applications “reasonably”.  However, employers can still refuse a request on the grounds of one (or more) of the now familiar eight potential business reasons set down in the legislation. Once a request is made, employees have to wait 12 months before they can make another request under these rules. Employees have the right to bring claims in the tribunal if employers don’t deal with their requests properly and can be awarded up to eight weeks’ pay if their complaint is upheld.

The law is supplemented by a statutory Code of Practice from ACAS, which tribunals must take into account when considering whether an employer has failed to meet their legal obligations. This is a very brief document (at only two pages) and reflects a “principles based approach”.  The Code is supplemented by a non-statutory Guide to help employers navigate this area.  

There is no doubt that this broadening of rights has the potential to cause some headaches.  Employers may now potentially be faced with competing requests for flexible working from parents, other carers (such as grandparents) and staff who simply want to achieve a better work life balance. For example, the government has anticipated that this right will be of particular interest to older people or young people who want to combine working with further study.

Clear problems will arise for employers where employers face competing requests from different individuals, particularly where some or all of them have “protected characteristics” for the purposes of anti-discrimination provisions. However, employers looking to ACAS for guidance about how to act in the face of such issues will be left sorely disappointed.  The Guide is clear that there is no onus on employers to make value judgments about the merits of requests; they should simply be dealt with in the order they are received.  Of course, it may be possible to accommodate multiple requests via discussions with staff, and this is encouraged by the Guide, but it won’t always be possible. In these cases, the sophisticated approach ACAS suggests “some form of random selection” (with an earlier draft referring to “drawing names from a hat”). Whilst this is all very well and good, one cannot help but feel that the landscape is ripe for discrimination claims and potential pitfalls for the unwary employer.   

However, some commentators have complained that the new rules do not have enough “teeth” in that employers who have thus far refused to embrace flexible working will find it all too easy to use the new rules to maintain that approach.  Frances O’Grady, TUC General Secretary, summarised that, in effect, the “right to request is only the right to ask nicely”.

In our view, a very clear set of procedures and clear documentation of the rationale for any decisions is key to ensuring consistency of treatment across the board; otherwise employers remain wide open to the risk of a discrimination claims from any refusals to agree to flexible working requests.  Of course, whilst the penalty for failing to deal with a request properly remains low (capped at eight week’s pay), the compensation for a discrimination claim remains uncapped.

If you would like to discuss any of the issues raised in this article or any other employment query, please contact Gareth Roberts on 0161 833 8402 or any member of the Employment team.