27/02/2014

By Melanie Stancliffe, Partner and Employment Specialist at Thomas Eggar LLP

Any employee with 26 weeks’ service can request to work flexibly to fulfil their caring responsibilities. As long as they are making the request to care for a child under 17 years old or adult in need of care and they have not made a request in the last 12 months, then their employer is obliged to follow a strict procedure to consider the request.

Once it receives the written request, an employer must:-

1. Meet with the employee within 28 days of receipt of the application;
2. Write to the employee with a decision within 14 days of the meeting;
3. Allow the employee 14 days to appeal the decision; and
4. If the employee appeals the decision, hold a further meeting within 14 days of receiving the employee’s appeal and write to the employee with the appeal decision within 14 days of the appeal meeting.

This is set to radically change. Firstly, all employees will be entitled to request to work flexibly (after 26 weeks’ employment). They will no longer need to have caring responsibilities. Whether for studying, sporting activities and a better work-life balance, employees will be able to ask to change the hours they work, the time they work and the place they work.

Secondly, the rigid procedure and time limits will be removed. Instead, employers will be required to deal with flexible working requests in a “reasonable manner” and to notify the employee of the decision within 3 months of their application. For any employer who has tried to jump through the procedural hoops, this is a welcome step, reducing the risk of the penalty of 8 weeks’ pay.

Allowing all employees the right of request will normalise working on a more flexible basis. A parent or carer asking for flexibility isn’t doing anything unusual or audacious, but requesting something that employers are already increasingly coming to expect. As a result, employers are more prepared to consider flexibility for all employees. In fact, many are finding that a more flexible workforce saves office costs and makes for better employment relations, staff retention, motivation and morale.

A general right to request to work flexibly can only strengthen this trend. It will help remove any feeling that a parent or carer is seeking ‘special treatment’, and (since the majority of those making these requests under the current regime are mothers) will be a positive step in combating discrimination against women in the workplace.

Extending the right to all employees to request flexible working will also be more influential on workplace culture than by compelling employers to change their conduct. The request can currently be refused for eight business reasons:

1. The burden of additional costs.
2. Detrimental effect on the ability to meet customer demand.
3. Inability to reorganise work among existing staff.
4. Inability to recruit additional staff.
5. Detrimental impact on quality.
6. Detrimental impact on performance.
7. Insufficiency of work during the periods the employee proposes to work.
8. Planned changes.

In practice, this means an employer is not required to accommodate a change.

Under the new regime, it will still be possible for employers to reject requests for these business needs. However it will be harder to merely pay lip service as an employer will have to show it has given the request serious consideration. Also, as flexible working requests increase from all employees, an employer which routinely rejects all requests will not retain credibility with its own workforce.

The Children and Families Bill marks a highpoint in employee-friendly legislation. Employers should brace themselves – it will produce powerful results.