What do I need to know about the new flexible working rights? Q&A

Q: Since the law changed on flexible working from 30th June 2014, we have yet to decide how to deal with applications. What do you advise?

A: Since 30 June 2014, all UK employees – no longer just parents and carers – have the right to request flexible working. These are the types of flexible working you can expect requests for:

  • Job-sharing – Sharing the work normally done by one employee with a colleague
  • Compressed hours – Working full-time hours but over fewer days
  • Part-time – Working certain hours or days, less than the standard working week
  • Flexi-time – Start and end work times vary but you work certain ‘core hours’, e.g. 10am to 4pm
  • Working from home with remote access
  • Term-time work – Taking paid or unpaid leave during school holidays
  • Staggered hours – Varying start, finish and break times
  • Annual hours – An agreed number of hours worked over the year but with some flexibility about when these are

The employee making a request must:

  • have a contract of employment with you
  • have worked for you continuously 26 weeks
  • only make one application in 12 months
  • have a child 16 and under (or a disabled child under 18)
  • be the carer for an adult, as defined by the Department for Business,
    Innovation and Skills

Agency workers and members of the armed forces are not eligible to apply.

So, how is it best for your organisation to respond to this change in the law?

Be reasonable
You must consider each application in a ‘reasonable manner’. The Acas Code of Practice defines this. Requests must be dealt with within three months of receipt, including any appeal. This time can be extended, if agreed by you and your employee.

Get it in writing
Ask employees to make their request in writing. Guide them in what information you wish to have included in this written request. Tell them who it should be submitted to.

Consider the request
Objectively weigh up the effects of granting the request in terms of benefits to your employee against any adverse business effects you foresee. The only eight grounds on which you can legally refuse a request provide a useful guide for your deliberations:

  1. Have you planned structural changes?
  2. Would there be a burden of additional costs?
  3. Would it have a detrimental impact on quality?
  4. Have you the ability to recruit additional staff?
  5. Would it have a detrimental impact on performance?
  6. Have you the ability to reorganise work among existing staff?
  7. Would it have a detrimental effect on your ability to meet customer demand?
  8. Would it cause a lack of work during the periods the employee proposes to work?

You are not legally obliged to say yes if to do so would be detrimental to your organisation. But, of course, you must be able to clearly demonstrate and justify your decision to your employee.

Meet with your employee
If you can agree the request without further discussion, notify the employee of this in writing.

However, if you wish to discuss the application, arrange a meeting within 28 days of receiving the request. (If this is not possible, you must obtain the written consent of the employee to extend the deadline.) The employee may be accompanied by a colleague or union rep who may address the meeting and confer with the employee – but may not answer questions for them.

After this meeting, you now have 14 days to notify the employee of your final decision. (Again, for any additional time to consider a request, you must obtain the employee’s written consent.)

If you are unsure of how granting the request will work in practice, you can suggest a trial period to run during this agreed extension, before coming to your final decision.

Make it official
If you agree to the flexible working request, write giving details to make it official. If you don’t agree, write stating which of the listed business grounds for refusing a request apply and explain why. This notification should also set out how to appeal.

The right to appeal
If the employee wishes to appeal, they must do in writing within 14 days of the date of receiving your written notice of refusal. You must then arrange an appeal meeting within 14 days of receipt of this, preferably chaired by a different manager. You must inform the employee of the outcome within 14 days of this meeting.

Be sure your business case is clear and justifiable in terms of the legal grounds for refusal. If you refuse a request where these grounds do not apply, the application may have to be reconsidered and you could have to pay compensation of eight times a week’s pay, subject to a statutory cap.

ACAS are in an excellent position to advise you on any thorny issues you cannot resolve internally. If you are in any doubt, contact them.