Changes to statutory flexible working regime from 30 June 2014

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From 30 June 2014, all employees with at least 26 weeks’ continuous employment will be entitled to make a statutory request to change their current working arrangements.

Background to statutory right

The statutory right to request flexible working came into effect in April 2002 and gave qualifying employees the right to request a change to the hours they work, the times they work and/or the place they work in order to care for a child. Initially, the right was limited to parents caring for children under the age of six. It has gradually been extended to cover parents of children under 17 (or 18 if disabled) as well as carers of certain adults.

With effect from 30 June 2014, the statutory right will no longer be limited to those with caring responsibilities. All employees with 26 weeks continuous employment (as at the date of application) will be entitled to make a statutory request to work flexibly, for any reason.

We have trailed these proposed changes. See our previous HR Briefings 2014 – What’s on the employment law horizon? and Increase in compensation limits and start date for extended right to request flexible working announced. We also covered the changes in our Spring Employment Law Update.

However, the Government only recently published the final version of the Regulations implementing the changes to the statutory right to request flexible working (provided for in the Children and Families Act 2014). Fortunately, the Regulations contain no surprises.

Dealing with statutory requests received after 30 June

In order to make a statutory request, a qualifying employee must still put their request in writing and explain what effect, if any, they think their request will have on their employer and how they believe such effects can be dealt with. Employees are still limited to making one statutory request in any 12 month period.

An employer who receives a valid statutory flexible working request under the new regime has three months in which to consider the request, discuss it with the employee and notify them of its decision (unless an extension of this time period is agreed between the parties). The strict prescriptive statutory procedures and time-table for considering requests, applicable to all pre 30 June 2014 requests, is being replaced with a more flexible statutory obligation to deal with requests in ‘a reasonable manner‘.

There is no statutory definition of ‘reasonable manner’, but Acas have produced a Code of practice and accompanying Guidance to assist employers in this respect. Although the Code is still to receive final parliamentary approval (and therefore still marked as draft) it is highly unlikely to change. When considering a complaint in respect of a breach of the new statutory flexible working regime, employment tribunals will be obliged to take compliance with the Acas Code into account.

Although employees will no longer enjoy a statutory right to be accompanied at a meeting to discuss a flexible working request, the Acas Code recommends that an employer acting in a ‘reasonable manner’ would still allow an employee to be accompanied at such a meeting.

An employer may decide to accept an employee’s request and confirm the start date and applicable contractual changes relating to the employee's new working arrangements. Or it may agree to a compromise, such as a temporary change in working arrangements or a trial period. Or it may refuse an employee’s request.

Refusing a statutory request after 30 June 2014

Employers can still refuse a statutory request for flexible working for one or more of the same eight business reasons as were applicable pre 30 June 2014. These are:

  • The burden of additional cost
  • Detrimental effect on the ability to meet customer demand
  • Inability to re-organise work among existing staff
  • Inability to recruit existing staff
  • Detrimental impact on quality
  • Detrimental impact on performance
  • Insufficiency of work during periods the employee proposes to work
  • Planned structural changes

Again, although no longer provided for in legislation, the ACAS Code suggests employers should still provide for an appeal against the refusal of a statutory flexible working request. Providing for an appeal will go towards evidencing that an employer has dealt with a request in a ‘reasonable manner’.

Tribunal complaints

Under the new regime, an employee can complain to an employment tribunal on the basis that the employer has:

  • failed to deal with their application in a ‘reasonable manner’
  • failed to notify them of their decision on their request within the required time-frame (three months, unless a longer time frame has been agreed)
  • failed to rely on one of the permissible statutory business grounds for refusing their application
  • based its decision on incorrect facts

Remedies

If a claimant is successful at tribunal in relation to a breach of the flexible working legislation, the tribunal can make

  • an order that an employer reconsider a request
  • an award for compensation for such amount as the tribunal considers ‘just and equitable’, up to 8 week’s pay subject to the statutory cap on a week’s pay (currently £464).

However, the most costly potential exposure arising from a refusal of a flexible working request, (statutory or otherwise), is from employees with protected characteristics under the Equality Act 2010. Such an employee may assert that a refusal of their request amounts to discrimination, either direct or indirect. For example an employee whose request to return to work part time following maternity leave is rejected could assert that a requirement that she continue to work full time is indirectly discriminatory. There is no statutory cap on the amount of compensation that can be awarded for a successful claim of discrimination.

Next steps for employers

Given the potential for discrimination complaints arising from flexible working requests, there is much to be said for employers deciding to deal with all flexible working requests in a consistent manner, whether they are made further to the statutory right or not, (particularly now the prescriptive statutory procedures for considering statutory requests have been removed). Having a clear written flexible working policy can be of assistance in this respect.

Our Resources and Knowledge section contains a flexible working policy and application form applicable to the statutory regime post 30 June 2014. We have also included a flexible working policy checklist for people who wish to ‘health-check’ their existing policy and procedures.

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Legal Compliance Lead

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