Flexi and you know it

New Flexible Working regulations come into force on 30 June. Whereas the current arrangements provide the right to request flexible working to parents and carers, the right will extend to all employees that have 26 weeks or more service.

What is flexible working?

Flexible working could include:

• reducing hours of work
• changing work patterns
• job share
• working from home

Many employers find providing flexible working (where it can be accommodated) enables employees to work more productively; removing distractions caused by having to work to more rigid working hours. The world of work is changing to become much more about individual contribution and delivery of objectives rather than being in a certain place at certain times. Technology is increasingly enabling work out of the office, so flexible working can be accommodated and is becoming more and more prevalent (75% of employees worked flexibly in some form in 2012, CIPD).

The request process

The new regulations relax many of the processes of the original requirements. A business can still decline a flexible working request for operational reasons.

The employee needs to explain what effect, if any, the change requested would have on the employer and how they believe it could best be dealt with.  Eg how work could be monitored if working from home.

Rather than adhering to prescriptive timescales, the employer is obliged to meet with the employee to discuss their request ‘in a timely manner’.

If the employer feels they may not be able to accommodate the requested change, they should explore any possible compromises.

The employer should inform the employee of their decision ‘as soon as possible’.

The statutory right to be accompanied at meetings and the right to an appeal have been removed in the new regulations with the employers now being required to ‘…deal with the application in a reasonable manner’, completing the process within 3 months of application.

Agreed changes are considered to be permanent, but employers can set trial periods and temporary arrangements if required.

Employees cannot make more than one statutory request for flexible working in any 12 month period.

Risks to Employers

As the right to request flexible working has opened up to all employees, the chances are that employers will receive a higher number of requests. They may have to manage several flexible working requests and assess the impact of numerous employees working flexibly. Where requests cannot be accommodated there may be a risk of making discriminatory decisions.

Employers are not required to judge the most deserving request – each case should be considered on its own merit looking at the business case and the possible impact of refusing a request.

Employers must be careful not to inadvertently discriminate against particular employees because of their protected characteristics under the Equality Act 2010 including disability, gender, pregnancy and maternity. Employers need to be careful where, for instance, flexible working arrangements would be a reasonable adjustment for a disabled employee, or where a rejection of a new mother’s request to work flexibly could be seen as indirect sex discrimination.

It is therefore sensible for flexible working request decisions to be documented and for the employee to be formally notified of the outcome of their request in writing.

The criteria for declining a request (see below) are still required under the new arrangements, and they form a useful framework for providing and communicating a potentially objective response.

• 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
• detrimental effect on ability to meet customer demand
• insufficient work for the periods the employee proposes to work
• a planned structural change to the business

Whilst the right to appeal is removed under the new regime, a dissatisfied employee could raise a grievance. To spare employers from this formal process, an internal appeal process may be preferable.

Non-compliance

Employees can bring claims to an employment tribunal if the three month time limit for responding to a request is not followed or if the employer wrongly treats a request as withdrawn. They may also be able claim if they think they are being treated badly because they asked for flexible working arrangements.

The tribunal could require the employer to reconsider the request and may award up to eight weeks pay in compensation.

Get prepared

Minimise your risk and help get the best from your employees with the following steps:

• Review and update flexible working policies, communicating revisions to all staff
• Train managers on the new arrangements so they know how to manage questions and formal requests and make fair and compliant decisions. Training should include the consequences of not managing a statutory requests as per the procedure
• Also consider training on managing remote workers, internal communication and workplace culture (eg perceived workloads, trust v command and control)
• Review home working policies (including the employer health and safety responsibilities)
• Consider introducing formal flexible working schemes (eg job share, term time working, compressed hours, homeworking) to promote work/life integration and set yourself apart as an employer of choice; enabling you to attract and retain the best talent

For help updating or creating a flexible working policy, manager training or advice on managing requests, please do get in touch.

*STOP PRESS*: We were asked for our thoughts on Flexible Working for a recent news article- see what we said here.