From 2014, the statutory procedure for considering flexible working requests will be replaced by a requirement on employers to deal with all requests “in a reasonable manner”. Paul McMahon and Neale Tosh consider the draft Acas code, which has been produced to help employers understand how they should consider flexible working requests.
On 25 February 2013, Acas released a draft Code of practice on the extended right to request flexible working. In this article, we look at the purpose of the draft code and consider whether it addresses some of the key issues currently faced by employers when dealing with flexible working.
The purpose of the draft code
The existing statutory procedure for considering flexible working requests – which is widely viewed as unduly rigid and prescriptive – is to be repealed and replaced by a duty on the part of employers to consider such requests in a reasonable manner. The aim of the draft code is to provide guidance to employers on how they should deal with a flexible working request.
The draft code is deliberately short and is designed to be easy to understand and simple to use. It comprises 13 principles that will be taken into account by employment tribunals when considering cases arising out of the flexible working legislation.
The draft code will be supplemented by a separate good practice guide, which has yet to be published. The good practice guide will, among other things, contain guidance on what the Government considers to constitute a “reasonable manner” and how employers can meet their obligations under the code.
While its brevity makes the draft code accessible, an employer’s obligation to handle requests to work flexibly “in a reasonable manner” is not fully explained and employers will have to look to the good practice guidance to gain a fuller understanding on this point. So reliance on the draft code alone is unlikely to be sufficient.
Suggested further principles
Some initial responses to the consultation include suggestions that the draft code could be improved by the addition of some further principles to help employers identify and manage their obligations to handle requests “reasonably” in order to minimise any risk involved. Suggested principles include that employers should:
- consider alternatives that might work, rather than just the initial request;
- explain the reasons for their decision and ensure it is based on correct facts;
- ensure consistency in their approach or be able to explain any inconsistencies;
- remember that the “same” treatment will not necessarily be fair or equal treatment – a policy of requiring full-time working may have a more adverse impact on certain groups (such as women with childcare responsibilities) and could give rise to indirect discrimination claims; and
- maintain records, including records of who made the decision, what discussions were had and what reasons were given for the outcome so that they can show that they have handled a request in a reasonable manner.
Dealing with competing requests
A key consideration for employers is how they should prioritise competing requests from employees in a diverse range of situations, from those returning from maternity leave and those seeking a change to their working pattern for religious or other family reasons to those looking for a phased retirement.
This is not a new problem, and many employers already offer flexible working arrangements to all employees and have experience of dealing with this vexing question. The draft code is, however, of limited use in this regard, given that it is silent on this point. Some advice is promised in the accompanying guidance. Hopefully, this will help employers handle competing requests and mitigate the risk involved.
In the meantime, we consider that there are a number of different ways of dealing with this type of situation. An employer could prioritise requests according to the effect of refusing the request – for example, the inability to continue working – or it could deal with requests on a first-come, first-served basis.
Employers could also consult with their workforce and agree priorities with them. Having a collectively agreed set of priorities has two advantages: first, employee engagement helps to minimise the risk of discontent; and second, it may provide some objective justification for an employer to accept or reject a particular request.
Avoiding discrimination
Discrimination claims are the most obvious risk associated with the handling of competing requests for flexible working. Very few of the cases brought under the flexible working legislation have not also involved claims of direct or indirect sex discrimination.
From 2014, the right to request flexible working will be extended to any employee with 26 weeks’ continuous service, regardless of whether or not they have caring responsibilities. The result of this is that claims of discrimination on grounds of age, religion and other protected characteristics will be more likely to arise.
Although the Government has recognised this as an issue, the draft code simply provides that an employer “should not discriminate against the employee.” It remains to be seen whether the guidance will provide further advice in this respect.
While direct discrimination claims are clearly a risk, the risk of indirect discrimination is sometimes more difficult for employers to spot. For this reason, some commentators have suggested that a fuller explanation in the code of what an employer should do or not do in order to avoid discrimination claims arising would be useful. At the very least, it is hoped that the code will make it clearer to employers that a robust commercial rationale for refusing a request should be formulated and that this could then help form the basis of a justification defence should any indirect discrimination claim arise.
Responses to consultation
Acas is seeking responses to its consultation on the draft code of practice, which closes on 20 May 2013. You can respond to the consultation on the Acas website.
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Paul McMahon is a partner and Neale Tosh a trainee solicitor in the employment, pensions and benefits team at Brodies LLP
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