Extension of Right to Request Flexible Working: Who Cares if you’re a ‘Carer’?

25 Jun

For most people in 21st century Britain, there is a desire, ‘work to live’ rather than ‘live to work’. Flexible working, be it in the form of working from home, compressed hours, flexi-time, part time or job sharing, allows people to achieve a work- life balance, giving them more control over their working week and as a result, their lives. The Children and Families Act 2014, which received Royal Assent on 13th March of this year, addresses this work-life balance for all employees. The reality of the modern workplace means that many employees almost expect ‘flexible working’ and see it as standard, whereas until now in reality it has been anything but. The fact remains that an employee does not have a right to flexible working, simply a right to request it. Nothing in the new legislation changes this position. That being said, it is now a right that a lot more people have; will the floodgates open?

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work life balance
For most people in 21st century Britain, there is a desire, ‘work to live’ rather than ‘live to work’. Flexible working, be it in the form of working from home, compressed hours, flexi-time, part time or job sharing, allows people to achieve a work- life balance, giving them more control over their working week and as a result, their lives. The Children and Families Act 2014, which received Royal Assent on 13th March of this year, addresses this work-life balance for all employees. The reality of the modern workplace means that many employees almost expect ‘flexible working’ and see it as standard, whereas until now in reality it has been anything but. The fact remains that an employee does not have a right to flexible working, simply a right to request it. Nothing in the new legislation changes this position. That being said, it is now a right that a lot more people have; will the floodgates open?

On 30th June 2014 the Flexible Working Regulations 2014 come into force, extending the right to request flexible working to all employees, not just those with ‘caring’ responsibilities for children or adult dependents. These regulations will apply to all requests for flexible working made on or after 30th June, and employees can request flexible working for whatever reason they choose. They widen the scope for applications to be made, and employers are going to have to carefully consider each case on its merits, particularly when faced with potentially competing and conflicting applications from more than one employee. Great care will need to be taken to avoid any indirect discrimination under the Equality Act 2010.

Regulation 3 provides that any employee who has continuous service of at least 26 weeks will be entitled to make an application for flexible working. An application must be in writing and dated, stating within it whether or not a previous application has been made (and if so, when). Only one application can be made in a 12 month period. The Regulations provide that an application is deemed to have been ‘made’ when it is received rather than when it was sent (send it by email and it will be ‘made’ that day!).

The balance will be shifted in terms of how an employer considers any application; rather than the current rather complex statutory procedure that must be followed when dealing with a request for flexible working under the Flexible Working (Procedural Requirements) Regulation 2002, there will now simply be a statutory duty to consider an application ‘reasonably’ and within a ‘reasonable time period’ and the 2002 Regulations will be repealed. There is no definition within the Regulations or the Children and Families Act 2014 as to what ‘reasonable’, and employers therefore will need to revert to ACAS for guidance in this area. Employers will be expected to comply with a statutory Code of Practice when considering requests for flexible working; there is currently a draft Code available on the ACAS website here. As it is currently in draft form it is of course subject to change, and ACAS will publish the final code once it has been approved following the amendments coming into force next week. The Code of Practice will be crucial for employers deciding applications, setting out the definition of ‘reasonable’ and what is considered to be a ‘reasonable time period’ in which to deal with the request. Compliance or otherwise with the Code of Practice will be taken into consideration by the Tribunal when considering complaints brought by employees.

Simply because an employee requests flexible working does not mean that a request must be granted. An employer can only refuse a request however for a valid business reason as set out in the legislation:    

1.    Additional cost;
2.    Inability to meet customer demand;
3.    Inability to redistribute/ reorganise work amongst other employees;
4.    Inability to recruit new employees; 
5.    Detrimental effect on quality;
6.    Detrimental effect on performance;
7.    Insufficient work for the employee at the times proposed;
8.    Structural changes of departments/ organisations.

If an employee is unhappy with the employer’s decision then they can bring a claim in the Employment Tribunal, and must do so within 3 months of the final decision being communicated. An employee has a right of appeal and ought to have exhausted all avenues before bringing any claim. If a complaint is made that the employer has not appropriately dealt with or considered an application for flexible working there is a remedy in damages, capped at a maximum of 8 weeks pay (Regulation 8) as well as the power of the Tribunal to order reconsideration of the decision.

As with all changes, only time will tell if there will be any lasting impact on the workplace. One would expect an influx of applications when the rules relax, and employers would be well advised to ensure that they are familiar with the new procedures before being faced with an overwhelming number of requests for flexible working.

Gemma White

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