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As a small or mid-size quoted company, you will be keen to ensure that you comply with the changing compliance landscape, whilst minimising disruption and management time required to do so. One aspect to this is ensuring that flexible working requests are dealt with appropriately.

Two important changes are to be made to the law on flexible working this year:

  • all employees who have 26 weeks’ continuous service will have the right to make a statutory flexible working request (a Request) (rather than only those with caring responsibilities)
  • the current statutory procedure which employers are required to follow when dealing with a Request will be abolished. It will be replaced with a reasonableness requirement and an ACAS code.

The changes were due in April but it is rumoured that they will be delayed until later in the year.

The new legislation is unlikely to be finalised for several months, so this note is based on the current draft. One hopes that few, if any, changes are made to the current draft in order to give employers time to prepare for the changes.

The new flexible working procedure

The legislation

The Government’s aim is to simplify the current statutory procedure, which is very process driven. Under the new procedure, the main requirements on the employer are to:

  • deal with the application in a reasonable manner
  • notify the employee of the final decision (including any appeal decision) within 3 months of the application unless the employee agrees to extend this period

In addition, as is the case currently, employers can only reject the Request for a permitted reason.

The ACAS Code

ACAS have produced a Code of Practice (the Code) to give further guidance on how a Request should be dealt with. The Code is not binding on Employment Tribunals but they will take it into account when deciding cases. Therefore, employers should generally follow the Code.

Key points from the Code include that employers should:

  • discuss a Request with the employee at a meeting as soon as possible after the Request was made (unless the employer can agree to the Request without a meeting)
  • consider the Request carefully, weighing the benefits of the requested changes for the employee and the business against any adverse business impact of implementing the changes
  • inform the employee of the decision as soon as possible
  • allow the employee to appeal if the Request is initially refused, and hold a further meeting to discuss the appeal
  • inform the employee in advance that they can be accompanied by a colleague at the initial meeting and at any appeal

What are the permitted reasons for refusing a request?

Employers are only entitled to reject the Request for one or more of eight permitted reasons. They are as follows:

  • the burden of additional costs
  • a detrimental effect on ability to meet client demand
  • an inability to re-organise work among existing staff
  • an inability to recruit additional staff
  • a detrimental impact on quality
  • a detrimental impact on performance
  • insufficient work during the periods the employee proposes to work
  • a planned structural change to the business.

These are the same as in the existing legislation.

What should employers do to prepare?

Review your policy: if you have a policy that does not already permit all employees with 26 weeks’ continuous employment to make a Request, this should be updated. If your current policy includes a prescriptive process (in line with the current statutory procedure), you should consider amending it to reflect the new procedure to give your organisation more flexibility in how Requests are dealt with.

Consider training managers: it is important that managers know what to do when they receive a Request and how Requests should be considered. Those dealing with Requests should be aware of what the Code says and how to comply. Training should also highlight the risk of discrimination claims resulting from a refusal to grant a Request and how best to minimise this risk.

Reflect: if your organisation does not already facilitate flexible working, you may wish to think about how it can work within your organisation. Many employers have already embraced flexible working and value the various benefits it can produce. This, and changing employee attitudes, has resulted in a general trend towards additional flexibility which is increasingly valued by employees.

This article was written by Chris Bushnell, Solicitor in the Employment Group at Speechly Bircham LLP. For further information please contact Chris Bushnell

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