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
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
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.
- 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’.
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
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
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
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
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.