Employment Solicitors: What Does New Flexible Working Legislation Mean For My Business?

Else’s expert employment solicitors discuss the changes to Flexible Working legislation.

You have probably already heard in the news, from 30 June 2014 every employee has the statutory right to request flexible working after 26 weeks employment.

Previously this right was only available to parents of children under the age of 17 (or 18 if the child is disabled) and certain carers.

There has been a lot of publicity around this legislation, and it is safe to say that most of your employees will be aware of their new rights. However, do you know what this new legislation will mean for your business?

The right is not to have flexible working, but to request it.

An employer must give reasonable consideration to any request received, and only reject it if there is a sound business reason for doing so.

Making A Request

To make a request for flexible working employees must:

  • Make their request in writing stating the date the request is made, the change to working conditions they are seeking, and the date they would like the change to take effect.
  • State whether they have made a previous application for flexible work and the date of that application.
  • Convey what change to working conditions they are seeking and how they think this may affect the business
  • If they are making their request in relation to the Equality Act 2010, for example, as a reasonable adjustment for disabled employee.
Responding To A Request

It is good practice for the employer to arrange a meeting with the employee to discuss the request. This will be an informal meeting to discuss the nature of the request and to clarify anything that might be at all unclear.

This may also be an opportunity to discuss possible compromises that would suit both parties.

The employer should avoid discouraging the employee or seeking to make any decisions until they have properly considered the reason for the request (though the employee may not wish to say why), and the likely impact on their business.

The employee does not have any statutory right to be accompanied. However, employers may want to allow the employee to bring someone along with them in the interests of acting reasonably.

The reasons for flexible working requests will be wide ranging, from those who have to look after an unwell loved one, to people who would just prefer to work earlier in the day rather than later.

Even if an employer is going to grant the request, Else’s team of specialist employment solicitors would still advise that they hold a meeting with the employee. It may even be necessary to conduct a trial, to ensure that both parties are happy before making a permanent change to the employee’s contract.

Any requests need to be dealt with within three months of receipt. We would advise that any employer deals with requests promptly as any uncertainty can cause problems within the workforce. If you have not already, we would recommend that you update your flexible working policies to cover all employees.

If it is not possible to deal with the request quickly, the employee should be regularly updated and given an estimate of when they should receive a substantive response.

As already mentioned, employees do not have the right to flexible working, but the right to request flexible working. The employer must give reasonable consideration to any request and can only reject it if they have a genuine business reason.

The reason must fall within one of these categories:

  • The burden of additional costs.
  • An inability to reorganise work amongst existing staff.
  • An inability to recruit additional staff.
  • A detrimental impact on quality.
  • A detrimental impact on performance.
  • A detrimental effect on ability to meet customer demand.
  • An insufficient amount of work for the periods the employee proposes to work.
  • A planned structural changes to the business.

These broad categories have been intentionally designed to ensure that flexible working does not affect the effective running of the employer’s business. The Flexible Working regulations have sought to strike a balance between the rights of the employee and the needs of the employer.

The employer and employee may want to consider a trial period to determine whether the altered hours will work. The trial should be agreed and that agreement recorded in writing. A letter detailing the nature of the changes and the length of the trial should be sent to the employee.

A meeting should be convened to discuss how the trial has worked for both parties, before the trail concludes. This meeting should be used to discuss whether the changes are going to be made permanent.

Always have this meeting at least a week before the end of the trial to ensure that the employee is fully aware of any further changes to their working hours. These changes may refer to the employee reverting to their original hours, or an extension of the trial to try slightly altered hours. Holding a meeting on the last day of the trial and telling the employee that they have to revert back to their original hours will not go down well. It is highly likely that a grievance will be lodged.

Once an agreement is reached regarding any changes this will have the effect of making a permanent change to the employment contract. If the employee only wants a temporary change then a separate agreement, or trial period, can be agreed to see whether the proposed changes work for both parties.

If a request is rejected, the reasons should be communicated to the employee in writing. The employee has the right to appeal and this should be mentioned specifically in this letter.

As with the original request, any appeals need to be dealt with within three months. However, Else’s employment solicitors would recommend dealing with any appeals as quickly as possible. Quick action will ensure that the employee is less likely to become unsettled and minimise the chance of disruption within your workforce.

The appeal process should follow the same principals as an appeal against a grievance or disciplinary decision. If possible, a different person should reconsider the request on appeal. The same basic principals apply to the appeal. The business is still under no obligation to allow a request if there is a genuine business reason why it should not be granted.

Employers should be flexible when considering a request, it is often the case that an incentivised and happy workforce are more productive. Dealing with employees in a transparent and consistent manner will help to achieve this aim.

If you want any further information or guidance regarding flexible working requests please contact Else’s team of employment solicitors on 01283 526200. Alternatively, you can send us a message and we will get in touch at a time that suits you.

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