The right of employees to request flexible working (i.e. to change the number of hours worked or the time or place when those hours are worked) was first introduced in the UK in 2003. There have been changes to this right since then, with the most recent changes taking place on 30 June this year.
Flexible working – before June 2014
Before the recent changes, the right to request flexible working was limited to those employees with at least 26 weeks’ service who were the parents of children under 17 (or under 18 if the child was disabled) and those who were the carers of qualifying adults.
These requests had to be dealt with in accordance with a set statutory procedure which contained certain time limits for the holding of the various discussion meetings and could only be refused on those business grounds listed in the legislation.
Flexible working from 30 June 2014
With effect from 30 June 2014, the right to request flexible working was extended to all employees with at least 26 weeks’ service – they no longer have to be parents or carers in order to qualify. As long as they have the necessary period of service, all employees have the right to request flexible working, whatever the reasons behind their wish to change their working pattern.
In addition, the previous statutory procedure has been replaced with a more general duty on employers to deal with requests in a “reasonable manner”. A Code of Practice has been published to explain to employers what a “reasonable” procedure entails but there are no set time limits for each stage of the process as long as the request is dealt with (including any appeals) within three months of the date of the request (unless this period is extended by agreement with the employee).
The business grounds for denying the request remain unchanged. If the employer refuses the employee’s request, it must be for one of the reasons already set out in the legislation which include: the additional costs which the changes requested would result in; the inability to reorganise the work amongst existing staff or to recruit any additional staff needed; or the fact that there is not enough work to do at the time when the employee wants to work.
However, it is important to note that the right is still a right to request only. Employers are not compelled to grant all requests – they just have to deal with them appropriately.
The Code of Practice warns employers not to discriminate when considering flexible working requests. The accompanying guide gives examples of when this may be a risk.
For example, a male employee asks for flexible working to care for his children. Although the employer regularly allows female employees to work flexibly, he refuses the male employee’s request because he believes that childcare is less important to him. This is likely to amount to direct sex discrimination and could give rise to a separate claim.
Equally, when considering multiple requests, an employer must be careful not to discriminate.He should look at each case on its merits, and may want to discuss the requests further with the employees in case there is any room for compromise or adjustment, which would mean that both requests could be accommodated.
In certain situations where the employer knows that only one of two similar requests can be granted without damaging the business, it is suggested that he could get the agreement of the employees to consider some form of random selection. Throughout, of course, the employer should be sure to avoid discrimination.
The remedies available to employees under the right to request procedure are limited. The tribunal has the power to award a maximum of only 8 weeks’ pay (capped at the statutory maximum for a week’s pay which is currently £464) if, for example, the employer refuses the request for a reason not listed in the legislation or fails to deal with it within the three-month time period. However, as has always been the case, employees may also bring complaints of discrimination in appropriate circumstances. So it is key, for example, that requests from men are treated as seriously as those from women to avoid possible claims of direct sex discrimination and that one employee’s request is not granted over another’s for discriminatory reasons.