All employees with 26 weeks’ service will have the right to request flexible working for any reason. There are no obligations on the employer to agree flexible working requests; just a duty to consider all requests in a reasonable manner.
Right To Request Flexible Working
Under the current legislation:
- A request for flexible working must be made in writing, be dated and state whether the employee has previously made a request and, if so, when this was made.
- The employer then has the three-month decision period (which can be extended by agreement) within which to consider the request, discuss it with the employee (if appropriate) and notify the employee of the outcome.
- An employer may treat the request as having been withdrawn by the employee if, without good reason, the employee fails to attend a meeting arranged to discuss their request and a further meeting rearranged for that purpose. Similar provisions apply in respect of a meeting to consider an employee’s appeal against the rejection of a request.
If flexible working requests are not handled appropriately then there will be a risk that employers will be accused of discrimination. Employers should ensure that they are able to provide logical and consistent explanations for the refusal of any request. In addition it will be important if there is any difference in treatment between employees that the explanation is not related to any particular protected characteristic (such as sex, age or disability).
The statutory scheme is supported by two Acas documents:
- The Statutory Code of Practice, Handling requests to work flexibly in a reasonable manner (Acas Code).
- Handling requests to work flexibly in a reasonable manner: an Acas guide (Acas Guide).
When tribunals are deciding complaints brought with respect to the statutory scheme, they must take the Acas Code into account when it appears relevant.
The Acas code provides that an employer should weigh up the benefits for the employee and the business as against any adverse business impact of implementing the changes. Employers do not have to make value judgments about the most deserving cases, but it is difficult to see how you can follow the Acas guidance without considering the merits of individual requests. Weighing up the benefits to employees of their respective requests against each other is always going to be dangerous as it is very subjective. If employers are going to do this, they must document their reasons because, a failure to have a good explanation for a decision could lead a tribunal to infer discrimination even if in truth none exists.
A flexible working policy can help to ensure consistency in handling requests and can also make it easier to communicate information on the right to request in a transparent way to all employees. To ensure that requests to work flexibly are handled in a fair way it would also be advisable to train HR personnel and line managers on how to deal with requests in compliance with the policy.
How Can Nelsons Help?
Laura Kearsley
is a Partner specialising in employment law specialists.
For more employment law advice or to comment on this article contact us to speak to a member of our employment law team.