The Children and Families Act 2014 received Royal Assent on 13 March 2014 and a significant change of note is the extension to apply for flexible working.
The current law
The current law allows those employees with at least 26 weeks’ service who are the parents of children under 17 (or under 18 if the child is disabled) and those who are the carers of qualifying adults to have the right to request flexible working.
On receipt of a request, the employer has to deal with the request in accordance with the statutory procedure.
A request can be refused on set business grounds which are listed in the legislation (which will remain as part of the changes – please see below).
The changes under the Children and Families Act 2014
As of 30 June 2014, the right will be extended to all employees with at least 26 weeks’ service. What this means is that applicants will no longer just have to be carers or parents in order to be eligible to apply.
As well as extending the right to who can make a request, the current statutory procedure will be replaced with a duty on employers to deal with requests in a “reasonable manner” and within three months of the date of the application.
Acas (the Advisory, Conciliation and Arbitration Service) has produced a final draft Code of Practice. This Code of Practice explains to employers what a “reasonable” procedure would involve. There is also non-statutory guidance to support the Code (see below).
Acas Code of Practice
This Code of Practice (“the Code”) advises employers on how to comply with the new duty to deal with requests in a “reasonable manner”. This is summarised below:
a. The flexible working request
This should be in writing be as per the current law but the Code explains that an employer must make it clear to employees what information is required in their request. For example, an employer may set this out in a flexible working policy.
b. What should an employer do with a request once received?
Once an employer has received the written request, then unless the employer intends to agree to it without further discussion, the Code advises that the employer must arrange a meeting with the employee as soon as possible.
Before the meeting the employer should remind the employee that they are entitled to be accompanied at the meeting by a work colleague if they wish. This would usually be detailed in the letter inviting the employee to the meeting.
c. Discussing the request with the employee
At the meeting, the employer should discuss the request with the employee. This should then give the employer a better understanding of what changes the employee is looking for and how the changes might benefit the business.
Wherever possible, the meeting should be in a private place where it cannot be overheard.
d. Considering the request
Essentially, the employer needs to consider the request carefully looking at the benefits of the requested changes in working conditions for the employee and the employer’s business and weighing these against any adverse business impact of implementing the changes.
The business grounds for denying any request remain unchanged. If an employer turns down the employee’s request, it must be for one or more of the reasons already set out in the legislation which are:
- the burden of additional costs
- an inability to reorganise work amongst existing staff
- an inability to recruit additional staff
- a detrimental impact on quality
- a detrimental impact on performance
- detrimental effect on ability to meet customer demand
- insufficient work for the periods the employee proposed to work, and/or
- a planned structural change to the business
The Code makes it clear that employer must not discriminate against the employee when considering the request. The importance of this is that even if the reason for refusing the request is due to one of the above listed business reasons, for example, if it indirectly discriminates against the applicant and the business reason is not sufficient justification, the business could be subject to a separate discrimination claim.
Once a decision has been made, the employer should notify the employee in writing of the decision as soon as possible.
The decision could be to accept the employee’s request or accept it with modifications.
If the request is rejected, the employer must give the employee a right of appeal.
e. Dealing with requests promptly
All requests, including any appeals, must be dealt with within three months of the date of the original request. This three month period can be extended by agreement with the employee.
The Code does go on to explain that if the employee, without good reason, fails to attend both the first and then any rearranged meeting to discuss their request or their appeal, the employer is entitled to treat the employee’s request as withdrawn.
Acas good practice guide
As mentioned earlier, Acas have also issued a non-statutory guide to support the Code. The guide covers matters including:
a. Legitimate business reasons
The guide gives examples of circumstances in which one of the legitimate business reasons set out in the legislation may justify denying a request and also explains how to deal with multiple requests.
The following example situation in the guide may justify refusing a request because of the additional costs involved:
Two managers apply for a post together as a job share. Both wish to work three days a week – making a total of six days between them. Whilst the employer is happy to appoint the managers to the role, he can’t afford the increased payroll costs. The employer discusses the possibility of each manager working 2 and a half days a week but the managers are not prepared to do this. In light of this and an inability to compromise on the part of the employees, the employer turns down the request for a legitimate reason.
b. Avoiding discrimination
As mentioned earlier, the Code warns employers not to discriminate when considering flexible working requests. The guide gives examples of when this may be a risk. One of those examples is:
A male employee asks for flexible working to care for his children. Although the employer regularly allows female employees to work flexibly, he refuses the male employee’s request because he believes that childcare is less important to him. This is likely to amount to direct sex discrimination and could give rise to a separate claim.
c. Handling multiple requests
The guide goes on to consider how an employer may deal with a number of requests from different employees at the same time. It may be possible to grant all of the requests received but an employer should look closely at the impact this would have on their business before coming to a decision.
The guide suggests that an employer considers the first request in the normal way. Then, when considering the next request, the employer can take into account the changes in the business context since granting the first request.
The guide emphasises that it is not for the business to make value judgments about the most deserving request. Instead, the employer should look at each case on its merits, and may want to discuss the requests further with the employees in case there is any room for compromise or adjustment which would mean that both requests could be accommodated.
In certain situations where the employer knows that only one of two similar requests can be granted without damaging the business, the guide suggests that the employer could get the agreement of the employees to consider some form of random selection to decide if the employer is unable to distinguish between all the requests.
As already mentioned, an employer needs to be careful they have not discriminated against the applicants.
The remedies available to employees in respect of flexible working will not change from the current law.
It will therefore be possible for employees to complain to the tribunal if their request is not dealt with in accordance with the legislation. The existing statutory procedure will not apply but employees will be able to complain if the employer fails to deal with the request within the new three-month decision period or if the business refuses the request for a reason which is not listed.
The tribunal could award compensation of up to 8 weeks’ pay (capped at the statutory maximum) if the employee is successful in their claim.
As highlighted earlier in this article, there is the risk of employees bringing claims of discrimination in appropriate circumstances. It is therefore vitally important that employers treat requests, for example, from male employees as seriously as those from women to avoid possible claims of direct sex discrimination.
Employees will also continue to have protection against suffering any detriment for exercising their right to request flexible working.
Reference sources: Practical Law Company, Lexology, Acas Draft Code of Practice on handling in a reasonable manner requests to work flexibly and Acas Handling requests in a reasonable manner to work flexibly: an Acas guide.