New Flexible working laws, what to do when faced with a flexible working request

Posted by : | 18th Jun 2014 | Employment law for HR Directors, General

As of 30th June 2014, all UK employees who have completed 26 weeks working continuously for their employer  have the right to request flexible working. So what has changed? Previously the right to request flexible working was extended only to employees who were parents or carers.

New Flexible working laws explained, watch our 3 minute SlideShare

 

Flexible working Requests new laws

 

New Flexible working laws Q&A
How should an employer deal with a request for flexible working?
Flexible working requests, at a glance flow chart of the process.
What are the business grounds for refusing a flexible working request?
Acas codes of practice and guidance, handing requests “in a reasonable manner”.

 

 

Your Flexible working policy Toolkit.
Get a policy + 11 template letters + 30 mins legal advice for £299+vat.
Contact me directly to buy one today.

New Flexible working laws Q&A

What type of flexible working can employees ask for?

  • part-time working
  • full-time working (if currently part-time)
  • annualized hours  –   where the hours an employee works are calculated over a whole year.  Usually split into “set shifts” and “reserve shifts” which employee works as demand dictates
  • compressed hours  –  employees work their total agreed hours over fewer work ing days, e.g 5 days work done in 4
  • flextime   –    where employees may be required to work within essential periods but outside “core times” they often get flexibility on how they work their hours
  • homeworking
  • job-sharing
  • self-rostering, where a manager agrees the staffing levels required then gives employees the ability to schedule their working day collectively to meet requirements.
  • shift-working
  • staggered hours, employees in the same workplace have different start , finish & break times, often to cover longer opening hours
  • term-time working, among others.

There are in fact very few limits as to what the employee could request.

What will the employer receive? A written request from the employee.

When must the employer respond? Within a 3 month decision period (which can be extended by agreement) the employer must consider the request, discuss it with the employee and notify the employee of the outcome.
The employer must deal with the application in a reasonable manner.

Dealing with Flexible working requests, at-a-glance flow chart of the process

Flexible working requests flow -chart new proceduresAt-a-glance flow chart of the procedure for handling Flexible Working Requests.

The employer can still only refuse a request for one (or more) of the 8 reasons set out in the legislation.

 

 

Is there a right of appeal if a flexible working request is rejected?
Yes

The employee can complain to an Employment Tribunal if the employer:

  • fails to deal with their application in a reasonable manner;
  • fails to notify them of the decision on their application within the decision period;
  • fails to rely on one of the statutory grounds when refusing their application;
  • bases its decision on incorrect facts; or
  • treats the application as withdrawn when the grounds entitling the employer to do so do not apply.

How often can an employee make a flexible working request?

Only one request can be made in any 12 month-period

Acas codes of practice and guidance, handling requests “in a reasonable manner”.

Acas has produced 2 documents relating to flexible working requests.

1. The Statutory Code of Practice, Handling requests to work flexibly in a reasonable manner (Acas Code)

Acas Code of Practice to handling requests for flexible working in a reasonable manner

 

 

 

 

 

 

2. Handling requests to work flexibly in a reasonable manner: an Acas guide (Acas Guide)

Right to request flexible working- an Acas Guide

 

 

 

 

 

 

When deciding to uphold or reject complaints, Employment Tribunals must take the Acas Code into account when it appears relevant. It is brief, at 14 paragraphs set out on 2 pages, and reflects the “principles-based approach” that was Acas’s intention in creating it. At the time of writing, the Acas Code is currently in a final draft form.  The Acas website suggests that the final draft Acas Code is currently under Parliamentary scrutiny and that the final version will be made available on the website once the process has been completed.

The Acas guide is a guide for employers to handling requests for flexible working reasonably. It is a longer document which runs through several examples and potential scenarios.

The paragraphs of the Acas Code and the Acas Guide are referred to throughout this note where relevant and are summarized below.

Who can exercise the statutory right to request flexible working?

In order to make a statutory request for flexible working, the following eligibility criteria apply:

  • A statutory request can only be made by an employee not a worker.
  • The employee must have 26 weeks’ continuous employment at the date the request is made.
  • Only one request may be made under the statutory scheme in any 12-month period.
  • Requests cannot be made by agency workers.

An eligible employee may request a change to their employment terms if the change relates to:

  • A change to the hours they work.
  • A change to the times when they are required to work.
  • A change to the place of work (as between their home and any of the employer’s workplaces).

Underlying these three simple categories of request, there are a wide range of possible work patterns. Further information on the nature and variety of flexible working is provided in the Acas booklet,
Flexible working and work-life balance.

How does an employee make a flexible working request?

An employee’s application must:

  • Be in writing
  • Be dated
  • State that it is an application made under the statutory procedure
  • Specify the change that the employee is seeking and when they wish the change to take effect
  • Explain what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with
  • State whether the employee has previously made an application to the employer and, if so, when.

How should an employer deal with a request for flexible working?

An employer who receives a flexible working request under the statutory scheme must:

  • Deal with it in a reasonable manner
  • Notify the employee of its decision within the decision period
  • Only refuse a request on one or more of the following 8 grounds:

Requests for Flexible Working can be legally refused
on the following 8 grounds
________________________________________________

  1.  The burden of additional costs
  2.  Detrimental effect on ability to meet customer demand
  3. Inability to reorganise work among existing staff
  4. Inability to recruit additional staff
  5. Detrimental impact on quality
  6. Detrimental impact on performance
  7. Insufficiency of work during the periods the employee proposes to work, or
  8. Planned structural changes.

_________________________________________________

Practical Issues

1 What are the grounds for refusing a flexible working request?

See the 8 reasons above.

The law says that the employer can decide to reject a request on a subjective basis ie it does not suit the business needs. If the employer considers that one of the 8 grounds above applies, then the test is satisfied.

There is no longer any statutory requirement to include a “sufficient explanation” as to why the particular ground applies and the Acas Code is silent on providing reasons for rejecting a request.

However, the Acas Guide suggests that the employer’s consideration of requests should be objective. Further, employers should consider whether an explanation would be both beneficial to the employee and support its decision, particularly in the event that the employee wishes to appeal (which the Acas Code suggests they should be permitted to do) or if the employee challenges the employer’s decision by bringing Employment Tribunal proceedings, for example, for sex discrimination.

2 Can an employer suggest a trial period for a flexible working request?

Yes – these can be a good way to see if the new work pattern will be successful in practice.

3 Can Employees appeal if their flexible working request is refused?

The employer should allow Appeals – so further information can be considered or another senior member looks at the request.

Your Flexible working policy Toolkit

With the new laws in place it’s a good time to think about how to handle multiple requests for flexible working and to create a flexible working policy to include in your employee handbook. If you already have a policy you will need ensure it is updated to reflect the new laws.

New Flexible Working laws Guide & Toolkit from The Legal Partners 150x150

We have created a Flexible Working Toolkit for Employers and HR Directors. It includes :
– a flexible working policy to include in your handbook
– template letters (for staff to apply and for the business to respond)
– a 1/2 hour  consultation (by phone, email, Skype) with one of our lawyers to tailor the policy to your business.  For the toolkit, and if you need more in-depth advice and guidance on creating a Flexible Working Policy for your company:

 

With the flexible working Toolkit you can be confident that :

  • Your business is complying with the new flexible working laws and procedures
  • You can demonstrate this to your current staff and prospective employees
  • You have the paperwork in place to handle requests in the new “reasonable manner” with minimum administrative upheaval.Price : £299+vat

Contact The Legal Partners on 0203 755 5288 or email us to purchase your Toolkit today.  

What should be included in a Flexible Working Policy?

The Acas Guide suggests that a Flexible Working Policy should:

  • Explain how employees should make a request, including who the request should be made to and what should be covered by the application.
  • Include a statement to the effect that the employer will consider the request and will only reject it for one of the eight business reasons.
  • State who can accompany the employee at any meeting regarding the request.
  • Explain what arrangements there are for appeals.
  • Set out the time limits on dealing with requests.

What claims can an employee bring at an Employment Tribunal for rejecting a flexible working request?

An employee who has made an application under the statutory procedure may bring a claim if

  • The employer failed to deal with their application in a reasonable manner
  • The employer failed to notify them of the decision on their application within the decision period
  • The employer rejected the application for a reason other than one of the statutory grounds
  • The employer’s decision to reject the application was based on incorrect facts
  • The employer treated the application as withdrawn but neither of the grounds entitling the employer to do so applied.

A claim cannot be brought on the first 4 of these grounds until either:

  • The employer has notified the employee of the decision on the application
  • The decision period applicable to the application, including any agreed extension to that period, comes to an end.

A claim arising out of an employer’s treatment of an application as being withdrawn can be brought as soon as notice to that effect is given to the employee

Approach of the tribunal

A tribunal in a claim under section 80H of ERA 1996 cannot question the commercial rationale or business reasons behind an employer’s decision to refuse a request. Neither can a tribunal substitute its own decision as to whether the request should or should not have been granted. This severely restricts the scrutiny to which an employer’s decision may be subjected.

Essentially, the tribunal’s role is restricted to:

  • Reviewing the procedure followed by the employer
  • Considering whether the request was taken seriously
  • Considering whether the decision was based on correct facts
  • Considering whether the reason given falls within the permitted grounds stated in section 80G of ERA 1996.

Time limits for claims

Subject to the rules on early conciliation a claim under section 80H of ERA 1996 must be presented to a tribunal:

  • Within 3 months of the relevant date, which is the first date on which the employee became entitled to bring a claim
  • Within such further period as the tribunal considers reasonable where it is satisfied that it was not possible to bring a claim in the initial three-month period.

A word about Acas Early Conciliation.
What is Acas early conciliation?

Claims under section 80H of ERA 1996 are covered by the rules on Acas early conciliation (EC), which came into force on 6 April 2014.  Read more about the new EC  rules in this article.

From 6 May 2014, no claim can be submitted to a tribunal without an EC certificate confirming that the case was referred to Acas and that the Early Conciliation process has come to an end. Once a claimant or respondent has contacted Acas, Acas will try to facilitate a settlement.

If it was the claimant who first referred the dispute to Acas, there will be an extension of time for submitting a claim. Broadly speaking, time stops running when the claimant contacts Acas, and starts again when the claimant receives an EC certificate from Acas. At that point, if the time remaining would be less than a month, it is automatically increased to a month.

Receiving a call “out of the blue” from an Acas Early Conciliation representative can be very confusing for employers & HR Directors, particularly if you are going through a procedure (be it a for flexible working request, a disciplinary , grievance etc..) with the employee in question at the time you receive the call.  Our advice is to delay discussing any detail with the Acas EC representative, talk to your lawyers and take advice before going back and responding to Acas. 

What damages or other remedies can an employee obtain at an Employment Tribunal for the illegal rejection for a flexible working request?

Where a tribunal finds a claim under section 80H of ERA 1996 well founded, it must make a declaration to that effect and may make either or both of:

  • An order for reconsideration of the request. If it does this the date of the tribunal’s order will be treated as the date of the request.
  • An award of compensation to be paid by the employer to the employee, of such amount as the tribunal considers just and equitable, up to the permitted maximum.

The maximum amount of compensation is 8 weeks’ pay (regulation 6, Flexible Working Regulations). The statutory cap on a week’s pay applies. Currently this is £464 from April 2014

Acas flexible working arbitration scheme

On 6 April 2003, the Acas arbitration scheme for unfair dismissal claims was extended to cover claims under the statutory right to request flexible working.

Acas Code and Acas Guide: handling requests in a reasonable manner

Acas Code: a summary

Acas Code of Practice to handling requests for flexible working in a reasonable mannerThe Acas Code, which as a statutory code must be considered by tribunals, makes the following suggestions as to how an employer should deal with a request:


 

 

  • The employer should arrange to talk with the employee as soon as possible after receiving their written request, unless the employer intends to approve the request, in which case a meeting will not be necessary (paragraph 4).
  • The employer should allow the employee to be accompanied by a work colleague at this discussion meeting, and at any appeal discussion, and the employee should be informed of this beforehand (paragraph 5).
  • The employer should discuss the request with the employee as this will enable it to get a better idea of the changes the employee is looking for and how those might benefit both the employee and the employer’s business (paragraph 6).
  • Wherever possible the discussion should take place in a private place where what is said will not be overheard (paragraph 7).
  • The employer should consider the request carefully, looking at the benefits of the requested changes for the employee and the employer’s business and weighing these against any adverse business impact of implementing them. In doing so the employer must not discriminate unlawfully against the employee (paragraph 8).
  • Once the employer has made its decision it must inform the employee as soon as possible and should do so in writing so as to avoid future confusion over what was decided (paragraph 9).
  • If the employer accepts the request, or does so with modifications, the employer should discuss how and when the changes might best be implemented with the employee (paragraph 10).
  • If the employer refuses the request if may only do so for one or more of the reasons set out in the legislation (paragraph 11).
  • If the request is refused, the employer should allow the employee to appeal the decision. Allowing the employee to do so may reveal new information or an omission in following a reasonable procedure when considering the request (paragraph 12).
  • All requests, and any appeals, must be considered and decided on within the three-month decision period, unless the employer and employee agree to extend it (paragraph 13).
  • When the employer arranges a meeting to discuss an employee’s request, including an appeal meeting, and the employee fails to attend this and a rearranged meeting without a good reason, the employer may treat the request as withdrawn in which case it must inform the employee of that decision (paragraph 14).
  • The operation of the Acas Code is considered in How should an employer deal with a request? and set out in Flowchart, The procedure on statutory requests for flexible working (from 30 June 2014)

Acas Guide: business reasons for refusing a request

Right to request flexible working- an Acas GuideThe Acas Guide makes observations and provides best practice examples with regard to the eight business reasons for which an employer can reject a flexible working request
(see Refusal of request for a prescribed reason).

 

 

 

Other statutory protection for employees requesting flexible working:

  • Sex discrimination
  • Leaving for and returning from maternity leave
  • Direct discrimination
  • Indirect discrimination

EMPLOYEES WILL USE THE REFUSAL OF A FLEXIBLE WORKING REQUEST AS EVIDENCE OF DISCRIMINATION AND/OR CONSTRUCTIVE DISMISSAL

  • Disability discrimination

The duty to make reasonable adjustments is unique to the protected characteristic of disability. Where the duty arises, the employer must effectively treat the disabled person more favourably than others in an attempt to reduce or remove that individual’s disadvantage. One of the ways that an employer may need to do this is by altering an employee’s working hours which the employee may ask for by making a request for flexible working.

  • Religion or belief discrimination

Practical guidance: dealing with flexible working requests

  • Meet the statutory requirements
  • Avoid “technicality” points
  • Demonstrate serious consideration of the request
  • Start from a “positive” perspective, seeking to overcome potential issues
  • Consider alternatives, rather than only the initial request
  • Consider carefully whether a role cannot be performed flexibly and whether (and how) that belief is justifiable
  • Explain the decision and the reasons fully and clearly
  • Ensure consistency
  • Consider relevance of the Acas Code of Practice on Disciplinary and Grievance Procedures
  • Respond to discrimination questions promptly and properly
  • Maintain records

For further advice please contact Abigail Oprey directly or call us on 0203 755 5288.

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