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Flexible working: now open to all

Changes to the law on flexible working are now in force. The new law will apply to any flexible working request made on or after 30 June.

Changes to the law on flexible working are now in force. The new law will apply to any flexible working request made on or after 30 June.

The detail

Any employee may now make a flexible working request. There is no longer a requirement for an employee to be a parent or carer to qualify.

As previously, only employees with at least 26 week’s service are eligible to apply. The new law only permits one request per employee in any 12 month period (although an employer may choose to allow more). Eligible employees can request a change to working hours, working time or working location.

The change in law is supported by a statutory ACAS Code of Practice which will be taken into account by Employment Tribunals when considering whether a request for flexible working has been dealt with appropriately. The emphasis is on acting ‘reasonably’ both in terms how the request is dealt with and the time taken to process it.

The prescriptive statutory process for considering a request has been scrapped in favour of a requirement that consideration of a request, including any appeal, must be completed within 3 months, unless the employee agrees to a longer period.

The eight business reasons for rejecting a request have been carried over from the old regime so the limited grounds on which a flexible working application can be refused remain exactly the same. These grounds include the burden of additional cost or any detrimental impact on performance, quality or ability to meet customer demand.

What does this mean for me?

You can expect to see a significant increase in flexible working requests given that they can now be made by all employees with sufficient qualifying service.

You may find yourself in unfamiliar territory considering flexible working requests that have nothing to do with caring responsibilities. Perhaps an employee wishes to work flexibly to pursue a particular hobby or interest, carry out voluntary work or attend college? All requests, whatever their basis, must be fully considered under the new regime.

Despite the expansion of the law in this area, employees still only have a right to request, rather than a right to be granted, flexible working. You may still refuse a request if it cannot be sustained commercially. However, it is still of paramount importance to refer closely to the eight permissible reasons for refusing a request. It will not be fair to turn down a flexible working application for any other reason.

Comment

The expansion of flexible working has been heralded as a positive step towards fostering diversity and engagement in the workplace. However, the new broader right to request will inevitably raise challenges for employers.

You will need to consider carefully how you will balance competing flexible working requests. Will you adopt a ‘first come first served’ approach or an alternative method of selection? Now the pool of eligible employees is much wider, it is more important than ever to adopt a transparent and even-handed approach.

As ever, it is important to be wary of discrimination. When dealing with a flexible working request great care should be taken not to treat an employee or group of employees less favourably on the grounds of a ‘protected characteristic’ such as sex or race. Also bear in mind the positive duty to make reasonable adjustments where flexible working arrangements might alleviate a disadvantage suffered by a disabled employee.

You may also need to review your organisation’s flexible working policy. Policies that do not already allow all employees with 26 week’s service to request flexible arrangements will need to be updated. Where policies set out a prescriptive process, reflecting the old regime, amendments should be considered to introduce greater flexibility. You might also wish to consider training managers to make sure they are fully up to date and know exactly what to do when a flexible working request is received.