NOTE: When introducing the new right of employees to request flexible working (from 30 June 2014), the Department for Business, Innovation & Skills explained that there are many forms of flexible working. It can include homeworking, or part time working, flexi-time, job-sharing and shift work. At the end of this article there are some resources you can download. working on sofa

The change on 30 June 2014

The law seems to be catching up with the elusive work/life balance of employees. The latest law revision widens the statutory framework to request flexible working available to most employees with at least 26 weeks’ service. It took effect on 30 June 2014.

The new regulations replace the existing legislation with a very similar set of provisions except that the applicant no longer is required to have responsibility for the upbringing of a child or be a carer.

My own situation explains it quite well: My husband and I have lived apart in two countries for three and a half years. This means that we spend a significant amount of time travelling to see each other as much as we can. Therefore, we are at the mercy of Lufthansa’s flying times between London and Frankfurt. As it happens, the last flight out of London is at a time where I would not be able to get there on time on a Friday after work. This means that often, I am unable to keep up my end of the weekend commute without having to request holiday days. My husband, on the other hand, has an arrangement where he can work from home and also work flexible hours so that he can make the flight times.

We do not have any children and we are not carers. So, the changes that came into effect at the end of June are something that could potentially have an impact on my own work/life balance. At least, that is so in theory.

From the 30 June, I could make a request to change:

  • the hours that I am required to work;
  • the times when I am required to work;
  • where I am required to work.

Once a valid application has been submitted to my employer, my employer:

  • is obliged to deal with it in a “reasonable manner”;
  • is obliged to notify me of its decision on the application within a period called “decision period”;
  • is only entitled to refuse the application if it considers that one or more certain defined grounds for refusal apply.

The changes explained

working from homeDid you all get this? Let’s recap shall we?

Essentially the main changes to the statutory scheme are:

  • flexible working requests would no longer need to be made in order to care for certain children and can be made by all employees (but not agency workers) with at least 26 weeks’ continuous employment;
  • the procedure to be followed is meant to be less prescriptive than the procedure previously in force but the employer needs to deal with the application in a reasonable manner. What a reasonable manner is we shall return to later in this article.

There is now also a statutory ACAS Code of Practice on handling requests in a reasonable manner. This means that any Employment Tribunal has to take this code of practice into account in determining whether or not the flexible working application has been dealt with in a reasonable manner.

The employer will have a three-month decision period that can be extended by agreement to consider the request and discuss the request with the employee and notify of the outcome.

If my employer fails in those obligations in dealing with the request I may bring a claim to the Employment Tribunal. It would be possible to bring a complaint to the employment tribunal on the following grounds:

  • an employer’s failure to deal with the application in a reasonable manner;
  • failure to notify the employee of the decision of the application within the decision period;
  • failure to rely on the statutory grounds for refusing the application (see below);
  • the employer bases his decision on incorrect facts or treats the application as withdrawn when the grounds entitling the employer to do so do not apply.

Grounds for refusal of an employee’s request

So, what are the grounds on which an employer can refuse a request for flexible working?

The grounds on which an employer can refuse a flexible working request remain the same under the new legislation, as applied previously. These are as follows:

  • rejectedburden of additional costs;
  • detrimental effect on the ability to meet customer demands;
  • inability to re-organise work among existing staff;
  • inability to recruit staff;
  • detrimental impact on quality;
  • detrimental impact on performance;
  • insufficiency of work during the period the employee proposes to work;
  • planned structural changes.

It is important to note that an employer can offer a compromise or a trial period if this is appropriate. An employer must also ensure that its dealing with the flexible working request is not discriminatory in any way. (Please see my previous blog article on discrimination in the workplace)

What are the benefits?

There many are benefits of properly managed flexible working arrangements.

It could lead to increased productivity and a better working relationship between the employer and the employee.

The key issue here is that any decisions regarding a request for flexible working has to be handled objectively and fairly and that employees will not be treated badly because they have asked for a flexible working arrangement. As with most issues in the workplace, it is important that you update your policies so that you have a flexible working policy that will ensure that all requests are dealt with in a fair and objective manner.

The penalty for getting it wrong

As with all legislative changes, there will be a time before you will see some significant change in how this is handled. It would be surprising if there were some significant impact on the number and/or types of flexible working requests based on these changes.

However, I think that it is important that you do inform your employees that they have this right and that you have policies and procedures to deal with any requests. If an employee succeeds in bringing such a claim on one or more of the grounds, an employment tribunal may make either or both of the following:

  • an order for consideration of the request;
  • an award of compensation which is considered just unequitable by an employment tribunal up to the statutory maximum which is eight weeks’ pay at a statutory cap.

Flexible working requests can also give rise to other statutory claims including constructive dismissal and/or discrimination claims. The compensatory award for constructive dismissal claims on its own will be capped at the statutory maximum, which is the lesser of 52 weeks’ actual gross pay or £76,574. However if the employee is successful in bringing a discrimination claim, the damages awarded are uncapped and in most cases, award injury to feelings, which can also be made under the top compensatory band as established by case law. For the most serious cases this is currently £19,800 to £33,000. Depending on the nature of the employer’s conduct, awards of aggravated or exemplary damages can also be made.

Action Plan

Whether you are thinking about making a flexible working request or just want to be prepared if you receive such a request, the Acas Code of Practice and the accompanying Acas Guidance is a very good starting point.  It is clear that the main principle of considering the request is that an employer should consider the request carefully looking at

a)    the benefits of the requested changes in working conditions for the employee and their business; and

b)    weighing these against any adverse business impact of implementing the changes.

As for myself, bringing a flexible working request in relation to my travel arrangements, given what I do, I think the main ground for rejecting a flexible working request in my situation could possibly be that the employer considers the change would have a detrimental effect on the business’s ability to meet customer demand. Given that I am here to serve my clients during the firm’s opening hours, it might be that they might not like the fact of me going off early on a Friday afternoon if matters needed to be handled urgently.

For example, if I were to work four longer days and freeing up Fridays to travel to Germany, my employer would no doubt be concerned that I would not be available to deal with pressing time-dependent issues concerning my cases on a Friday. The company or the firm would most likely fear losing billable hours and attracting complaints from clients because of my absence and would be inclined be to refuse the request on the grounds of an adverse impact on the customer demand. A compromise in this case could possibly be for my employer to consider a request under the “right to request” to trial the arrangement for a period of time to see whether or not the clients would in fact be negatively affected. Perhaps some clients would be happy that I would be able to deal with their matters after normal office hours four days a week. The office secretary could also perhaps handle routine matters in my absence… in any event, it is interesting and good to know that as an employee I now have the right to request flexible working which in the future may be something worth considering.

Downloads

– Code of Practice on handling in a reasonable manner requests to work flexibly
– The right to request flexible working: an Acas guide (from 30 June 2014)
– Making a statutory application
– Information about taking an employer to an employment tribunal

Sofie Lyeklint

Sofie Lyeklint

Sofie has recently joined the firm and heads up the Employment department specialising in all aspects of employment law. She has a particular interest in Tribunals and drafting employment contracts, staff handbooks and settlement agreements. Sofie also works closely with our Commercial Property and Residential Property departments specialising in Collective Enfranchisement, which is flat owners entitlement to collectively purchase their own freehold, the Right to Manage and Lease Extensions. She is committed to reaching the best commercial outcome for our clients.

Sofie speaks fluent Swedish and Chinese and graduated with a Chinese & Politics honours degree from School of Oriental and African Studies in 2005. She then spent a few years living and working in China before returning to the UK to qualify as a solicitor. In her free time she enjoys scuba diving, boxercise, running and travelling.

She can be contacted at +44 (0)1273 204411 or by email to sofie@engleharts.co.uk
Sofie Lyeklint
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