The current law on Flexible Working

The Current legislation governing flexible working arrangements is the Flexible Working Regulations 2014 which in turn is supported by an ACAS Code of Practice in this area aimed at ensuring that employers get it right.

Before 2014, flexible working rights were limited to Parents and Carers however the 2014 Act extended these rights to all employees as long as they have 26 weeks’ continuous service as a qualifying criterion, and they have not made a request in the previous twelve months.

It is important to remember that there is no legal right to have flexible working arrangements, only the right to request it.   Employers have the right to refuse flexible working requests as long as they have given serious consideration to such requests.

Flexible working in law is a working pattern other than the normal contractual working pattern.   It can include a variety of different working patterns for example making changes to an employee’s hours of work, the times that they are required to attend work or changes to their place of work.   Here are some examples:-

• Flexitime arrangements whereby employees are required to be at work during core periods but can otherwise arrange their hours to suit themselves.
• Compressed hours meaning that employees work the same number of hours over fewer days.
• Annual hours contracts where employers and employees can agree the number of hours that they will work over the course of the year but where the work pattern can vary from week to week.
• Staggered working hours where employees can start and finish work at different hours.
• Job sharing arrangements where for example two employees’ alternate days, half-days or weeks between them.
• Reducing hours of work which is especially popular for female employees returning from maternity leave.
• Requests to work from home for periods of time or all the time.
• Temporary changes to working patterns to care for a dependent or to undertake a training course or an unpaid sabbatical.

The right to request flexible working is open to both full-time and part-time employees but not workers or agency workers, provided that they meet the 26-week continuity of service requirement.

If any employee wishes to make a request for flexible working arrangements then they need to make an application to their employer setting out the changes that they are seeking, clarifying what effect the changes could have on the business and how the business can cope with the changes.   The application also needs to confirm the dates that they would like to change to be implemented and a statement to state that it is a statutory request for flexible working.  The application also needs to state whether a flexible working request has been made previously and when.

Once an employer receives an application from an employee for flexible working arrangements, they will need to arrange a meeting as soon as possible with the employee to discuss their request.   The employee can be accompanied by a work colleague as well according to the ACAS Code of Practice, but this is not compulsory just best practice.    There also does not have to be a meeting and it can be agreed that the matter can be dealt with in writing.

The employer must however give the request serious consideration and weigh the benefit of the changes against any adverse impact on the business.   Once the employer has arrived at a decision then they must inform the employee of their decision as soon as possible.   There is also a right of appeal for the employee to pursue as well.

The most common reason for employers to refuse requests for flexible working are the impact it would have on the business.   This is especially where the employee’s role is client facing and there is a request to work from home.   Clearly in that situation it is going to be challenging to allow an employee to work from home.   Other reasons for refusing a flexible working request can include:-

• A detrimental effect on the ability to meet customer demand.
• The burden of additional costs.
• An inability to reorganise work amongst other employees.
• Difficulties in recruiting additional employees.
• Detrimental effect on quality of work and the employee’s performance.
• Planned structural changes to the business which would not work with the proposals.
• A deficiency of work at the time that the employee proposes different hours of work.

If an employer isn’t sure about the impact that flexible working would have on the business, then one way around it would be to agree any changes on a trial basis and at the end of the period to evaluate how it is working out.  It is important to advise the employee that if it is not working out that they reserve the right to revert to the previous arrangements.  In the alternative trial periods can be extended if it is unclear how the new arrangements are progressing.

If the changes are successful, then it is recommended that the employer updates the employee’s employment contract to confirm any changes to working hours and any impact on annual leave entitlement.

If the request involves an agreement to work from home, then it is important that employers undertake an adequate risk assessment at the employee’s home and update their insurance provisions to accommodate employees working from home.   Typical things to look out for are the employee’s workstation and seating arrangements, health and safety with for example no dangerous extension leads, that there is adequate lighting , temperature control and ventilation.

If the flexible working request is refused then the employee can formally appeal against the decision and they can also raise a formal grievance, although the grounds will probably be similar or the same for both processes.

Other methods can include the use of external mediation to see if this can resolve any dispute.   Failing this the employee can resort to ACAS and the Employment Tribunal.

The Employment Tribunal can order an employer to reconsider a request for flexible working and to pay compensation up to a maximum of eight week’s pay currently capped at £525 per week.   The employee could also make a claim of discrimination as well where compensation is not capped.   It is therefore important to give real consideration to requests from employees returning from maternity leave or from a disabled employee who wants flexible working as a reasonable adjustment to their working environment to minimise the risk of a discrimination claim.

Above all it is important for employers to be consistent in their approach to requests for flexible working with all employees, where they are permanent, fixed-term, full-time or part-time.  This will ensure that they do not treat employees differently and expose themselves to the risk of a claim in the employment tribunal which they could lose.  This could also attract bad publicity for the business.

Finally, it is also important to remember that it is unlawful to dismiss an employee who asserts a statutory right such as the right to request flexible working and that any dismissal will be automatically unfair where the two-year continuity of service requirements are not required.  It is also unlawful to treat an employee detrimentally because they have exercised these rights which could lead to a legal challenge.

If you have any questions relating to flexible working, then contact Steven Eckett – Partner and Head of Employment at Meaby & Co LLP.  Telephone: 0207 703 5034  E-mail seckett@meaby.co.uk