Extension of the Right to Request Flexible Working – Summary of key provisions

On 30 June 2014, the right to request flexible working was extended to all employees with at least 26 weeks’ continuous employment.  Unlike the procedure which was previously in force for parents with young children, the new procedure is far less prescriptive.  All that needs to be done by the employee to trigger the procedure is to make a written request to vary his or her working arrangements.  Only one such request can be made in a 12 month period.  Following receipt of that request, the employer has three months to consider the request and reach a decision.  This period can be extended by agreement and the employer can discuss the request with the employee to try and reach agreement if the actual basis of the request cannot be accommodated.

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).

The employer must deal with the application in a reasonable manner and therefore it is certainly advisable that any request is dealt with in exactly the same way as requests by parents/carers were dealt with previously.

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

  • the burden of additional costs;

  • detrimental effect on ability to meet customer demand;

  • inability to reorganise work among existing staff;

  • inability to recruit additional staff;

  • detrimental impact on quality;

  • detrimental impact on performance;

  • insufficiency of work during the periods the employee proposes to work; or

  • planned structural changes.

Whilst the legislation does not expressly require an employer to allow an employee to appeal against the rejection of their flexible working request, the Acas Code suggests that employees should be allowed to do so:

“If you reject the request you should allow your employee to appeal the decision. It can be helpful to allow an employee to speak with you about your decision as this may reveal new information or an omission in following a reasonable procedure when considering the application.” (Paragraph 12.)

A right of appeal may therefore come to be seen in many cases as an essential part of dealing with a flexible working request in a reasonable manner, as required by section 80G(1) of ERA 1996.

It will be interesting to see how this change pans out in practice.  The old legislation, whilst applying to both men and women, did tend to benefit mainly women and, as such, employers were often wary of refusing requests for fear of being found guilty of indirect sex discrimination.  As the right to request flexible working is now available to everyone, it will be interesting to see whether this will have the effect of increasing flexibility in the workplace or whether employers will feel that they can refuse flexible working requests from non-parents because they assume they will not be able to pursue indirect sex-discrimination claims.  I would be nervous to advise clients to refuse requests on those grounds, however, as it may well be that some men will be able to pursue indirect sex discrimination claims on the basis that they are being treated less favourably than women in the workplace who have children and whose flexible working requests have already been accepted.  There is also, now, the right to issue a tribunal claim if the employee believes that the employer failed to deal with his or her request in a reasonable manner.  Clearly, a failure to act consistently across the workforce would be likely to be seen as unreasonable.

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About Belinda Lester
I am the managing director and founder of Lionshead Law a specialist employment law and HR consultancy company.

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