Changes to the right to request flexible working - do you need to change your policy?

From 30 June 2014, all employees will have the right to make a formal request to work flexibly provided they have worked for their employer for at least 26 weeks. Employees will not have to demonstrate that they have parental or other caring responsibilities (as is the current position) and can instead apply for any reason, even if it is linked to their personal preferences, such as to start work later in the morning because they find it difficult to get up!

The legislation will also, for the first time, introduce the concept of “reasonableness” into the process. How do you demonstrate that you have acted reasonably and how do you fairly determine competing applications?

The changes will not alter the basic premise that the right is to request a different working pattern, NOT a right to obtain it, and you are still able to reject an application on the eight existing grounds if granting the request will adversely affect your business.

The requirement to act reasonably is not the same as that required of you in the context of an unfair dismissal claim, although there are some similarities. You are required to follow a straightforward procedure and should only reject the application if you can establish one of the eight existing business grounds and the decision itself is not discriminatory.

The procedure

Once you receive a statutory request, you are required to meet with the employee to discuss his proposals (at which he has the right to be accompanied), consider the request, reach a decision and offer the employee the right of appeal if you reject the application. These steps and the outcomes in relation to them should be recorded in writing.

The individual time limits which currently apply in relation to each stage will be abolished. Instead, the whole process (including any appeal) must be dealt with within a three month period which will provide employers with more flexibility. This period can also be extended by agreement.

This process is not onerous and the introduction of a requirement to act reasonably should not cause difficulties for most employers. Employees will only be able to bring a claim against their employer if their request has not been dealt with in accordance with the procedural requirements, or where the decision is not based on one of the eight grounds, has been based on incorrect facts or, is discriminatory.

How to deal with competing requests

The issue of dealing with competing requests will potentially become more difficult once applications can be made by the whole workforce. For example, can you prioritise requests made by those with caring responsibilities ahead of other applications made by staff merely seeking a lifestyle change?

The first point is that an employee is only obliged to tell you what changes he would like to make to his working pattern and how these can be accommodated, rather than the reasons for the request. There is of course nothing to stop you from asking the employee to explain why they need to change their hours etc, but if you do this, you must not make value judgments about who you consider to be more deserving as this may expose you to discrimination claims.

That said, you may be required to prioritise certain applications to avoid unlawful discrimination claims. For example, it is likely to be a reasonable adjustment to accommodate a disabled employee’s request to work part time ahead of an employee simply wishing to reduce their hours to spend more time with their grandchild, in circumstances where you cannot grant both requests.

ACAS have published a draft Code of Practice and accompanying Guidance to help you to understand the new requirements. It recommends that you:

Review each application in light of the current business context (which may have changed if other requests have been accommodated).
Consider each case should on its own merits.
Consider discussing the issue with the employees to see if there is any room for adjustment or compromise before coming to a decision.
Consider “random selection” to deal with competing requests if you are unable to distinguish between the requests in any other way, such as pulling names out of a hat.
If you cannot accommodate the request, consider calling for volunteers from employees already working flexibly to see if they are prepared to adapt their working patters which will allow the business to grant new arrangements.

If you don’t already have a policy in place to deal with this, now is the time to draft one. A policy will help your staff and managers to understand what is expected of them and how a decision will be made. It will also assist you to deal with applications consistently and should minimise the risk that you will discriminate against employees, or otherwise act unreasonably.

Even if you already have a policy in place, unless it is open to all staff, you will need to adapt it to reflect these changes.

- Fergal Dowling

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