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Forthcoming changes to Flexible Working

24 June 2014

In 2003 employees with parental responsibilities were given the right to request a change to their working arrangements so they could care for their children under six years of age or disabled children under 18 years of age.  Over time, that right has been extended to include parents of children up to the age of 16 and carers of adult dependants.

This was seen very much as a 'family friendly' right aimed at easing the pressures of balancing life and work for those who have families that rely on them (typically women). In order to ensure that employers dealt with requests fairly, they were obliged to follow a particular procedure, including holding meetings and writing letters within specific time frames, and any refusal had to be for one of the following eight reasons:

  • Extra costs which will damage the business
  • The business won't be able to meet customer demand
  • The work can't be reorganised among other staff
  • People can't be recruited to do the work
  • Flexible working will have an effect on quality
  • Flexible working will have an effect on performance
  • There's a lack of work to do during the proposed working times
  • The business is planning changes to the workforce

Things are changing from 30th June as the right has been extended to all employees (regardless of parenting or caring responsibilities) and the statutory procedure has been dropped. The Coalition Government's position is that the new right will give employers the opportunity to retain skilled staff. However, employees have always been able to request a change to their working arrangements and explain their reasoning; if employers aren't ordinarily able to see the benefit of agreeing to such a request, it is hard to see how an obligation to consider it will change that.

Employers will have greater flexibility to deal with the new requests in a way that suits their business, as long as they do so in a "reasonable manner” and within three months of the request being made. The reason for refusing a request must still fall into one of the same eight reasons as before but there is no longer a requirement to carry out an appeal if the employee is unhappy with the outcome.

That said, the ACAS code of practice on this topic will encourage employers to stick to elements of the old procedures; such as offering an appeal and allowing the employee to be accompanied to meetings. It may therefore be that employers will have an increased burden with the numbers of requests and not much scope for reducing the time spent on them, at least for the short term.

The number of complaints to Tribunals about failures to follow the old statutory procedure was always low, as were the penalties. Of much greater concern is the possibility of competing requests from employees with different personal situations and protected characteristics (e.g. sex, race, age, disability, sexual orientation, religion or belief) when not all requests can be agreed.

To sum up, employers should be alive to the possibility of a discrimination claim flowing from the way they prioritise or handle requests.