Flexible Working Regulations 2014
The Flexible Working Regulations 2014 came into force on 30th June and extend the right to make a request for flexible working to any employee who has been employed for 26 weeks and not just parents of children under 17, or 18 if disabled, and certain carers – as was previously the case.
The basic right to request is unchanged. Employees can make up to one written request every year and you can refuse the request on any of eight, very wide, business grounds. A tribunal cannot normally investigate the rights and wrongs of the refusal, only whether the procedure has been properly followed. Maximum compensation for a failure to comply is eight weeks’ pay, currently capped at £464 per week.
What’s New With The Flexible Working Regulations 2014?
From 30 June 2014 any employee with 26 weeks’ continuous service can make a request to work flexibly, for whatever reason.
The procedure for requesting flexible working was also simplified. You must deal with the application in a “reasonable manner” and within a three-month period, unless an extension is agreed. This replaced the more stringent statutory procedure which had specific time-frames for each step. You do still have the right to reject flexible working requests in the same way as they did previously, relying on one or more of the eight statutory business reasons for refusal.
The ACAS Code
The ACAS Code recommends that employers should:
- talk to an employee as soon as possible after receiving a written request, unless the request will be approved;
- allow employees to be accompanied at any discussion;
- consider the request carefully;
- inform the employee as soon as possible in writing of any decision; and
- discuss how and when the changes might best be implemented or allow an appeal.
Dealing With Competing Requests
The issue of competing requests is complicated by potential discrimination risks. For example, if you are found to have unreasonably rejected a request from an employee who has childcare issues, you could expose yourself to a potential discrimination claim.
The ACAS guidance makes it clear that you are not required to make judgements about the most deserving request. However, it is likely that given the risk of discrimination claims, in some scenarios that is exactly what you may have to do to protect your business from potential claims.
It is important to remember that the statutory right to request flexible working remains a right to request only, there is no right to flexible work. You should therefore consider whether requests can be accommodated, and, if not, whether there are sufficient grounds, under the new regulations, for rejecting the requests.
Practical Issues Of The Flexible Working Regulations 2014
- When refusing a request, you must specify which of the statutory reasons applies, I recommend supporting this with an explanation.
- Be vigilant over the that three-month time scale, the whole process including any appeal should not exceed the three months unless an extension is mutually agreed.
- If faced with competing requests be careful not to discriminate against either employee.
- When considering a request, I always recommend having a trial period before you make the change permanent.
- Where an employee fails to attend a meeting and a subsequent rearranged meeting without good reason you may consider the request as withdrawn.
- Document document document: always record the changes you agree with employee in writing.
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