Catherine Wilson, partner at legal firm Thomas Eggar LLP, outlines eight things that an employer should know about the proposed extension to flexible working rights.
In May 2011 the Government launched its Consultation on modern workplaces with plans to extend the right to request flexible working to all employees from 2015. Recent surveys, such as the one carried out by consultancy My Family Care, have shown that flexible working is increasing and that many employers and employees are recognising the benefits it brings.
The current right to request is restricted to parents and carers. However, the Government believes that flexible working could be used to support people for other reasons, including supporting individuals who wish to undertake voluntary activities. The Government’s proposals could also provide support to other policy initiatives such as the “Big Society”. The right to request flexible working was introduced in April 2003 for parents of children under the age of six, or 18 if the child has a disability. Further extensions followed in 2007 and 2009. As before, the proposed right-to-request legislation will not create an entitlement to flexible working but reinforce the obligation on an employer to consider an employee’s request.
Under the new proposals, who will be eligible to request flexible working?
Under the current system, only parents of children aged under 17, parents of disabled children aged under 18 and relatives who look after adults requiring care have the right to make a request. The right to request is also limited to employees with 26 weeks’ continuous service. This does not preclude an external job applicant from making a request prior, or at the time, of appointment, however, such a request falls outside the statutory scheme.
The Government’s new proposals are that all employees with 26 weeks’ continuous service will be able to make a request.
The extension to all employees with the requisite employment period will help to support not only parents and carers, but also individuals who wish to undertake voluntary activities and individuals who did not meet the narrow definition in the current legislation. Moreover, although the 26-week period will remain, the Government is keen for employers to consider flexible working opportunities at the point of recruitment and there are plans for non-legislative measures to be put in place.
Will the reasons for refusing a flexible working request change?
The Government does not propose to make any changes to the current grounds for rejecting a request, which are set out in the Employment Rights Act 1996 as follows:
- the burden of additional costs;
- detrimental effect on ability to meet customer demand;
- inability to recruit additional staff;
- inability to reorganise work among existing staff;
- detrimental impact on quality;
- detrimental impact on performance;
- insufficiency of work during the period the employee proposes to work; and
- planned structural changes.
How many times may an employee request flexible working?
The current position is that an employee may make only one request in any 12-month period. Under the new proposals this restriction is relaxed in certain circumstances. An employee whose original request stated that they were seeking a change for less than a year will be allowed to make an additional request within any 12-month period. This will give an employee the flexibility to request temporary arrangements to help with complex but short-term difficulties.
How should an employer go about prioritising requests?
If the proposals go ahead, employers will receive requests from employees whose reasons do not only arise from the demands of being a parent or carer.
The Government does not want to issue guidance on how employers should prioritise multiple requests received at the same time from different types of employees. The reason provided for this is that giving priority to certain groups would risk reinforcing the idea that flexible working is primarily for parents and carers and undermine its aim of encouraging a culture where flexible working is accepted in every workplace, for any legitimate reason. It therefore proposes that once an employer has shown that it cannot accommodate all the requests for purely business reasons, it will be allowed to take any other factors that it considers relevant into account when deciding between requests.
However, employers will have to ensure that when prioritising requests they do so for business reasons alone and that they do not directly or indirectly discriminate against employees. This is a complex balancing act given that discrimination is prohibited in relation to nine specific protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
How will the existing statutory duty for an employer to consider requests for flexible working change under the extension of flexible working rights?
The Government proposes to make the system for considering flexible working requests more adaptable. The current statutory procedure for considering requests will be replaced with a new duty on employers to consider requests “reasonably” (for example, within a reasonable time and in a fair and reasonable manner). A statutory code of practice setting out what a reasonable process requires will be the subject of future consultation.
Are there any exclusions?
There are currently no “small business” exemptions. Practically speaking, however, the size and type of employer may make it more difficult to accommodate certain types of flexible working requests. Under European law, all businesses, regardless of size, must allow parents to request flexible working when returning from a period of parental leave. Discussions have taken place concerning a moratorium on the application of new legislation to micro-businesses (those with fewer than 10 employees) and start-ups, but the consultation suggests that these businesses should not be excluded.
What are the rights of the employee when appealing against a refusal of a flexible working request?
The consultation does not shed much light on whether or not any changes will be made to the appeal process. Employers that currently refuse a request for flexible working must advise the employee that they are entitled to appeal. It is likely that the current appeal process will continue as it provides an opportunity for a further review of the employee’s request and for the employee to question in detail why the employer’s decision has been reached and whether or not the grounds for refusal were based on correct facts.
When will these changes take effect?
The extension of the right to request flexible working was very much a flagship policy initiative for the coalition Government with a projected implementation date of 2015 for all employees. The continuing economic woes, coupled with the often-stated desire to cut “red tape”, seem to have curbed this enthusiasm and it remains to be seen how swiftly the Government will choose to respond. Some delay seems almost inevitable.