This article was last checked in May 2016 and is up to date.
The right to request flexible working was introduced in 2003 to allow employees with parental responsibility to request to work flexibly in order to help them balance their work and family life. It was initially available only to parents of children under the age of six but has since been extended to parents of children under the age of 17 (or 18 if they are disabled) and those who are caring for an adult dependent.
Available to all employees
However, the global landscape of work is changing and it has been decided that there is no reason why flexible working patterns should continue to be the preserve of parents and carers, particularly women.
With effect from 30 June 2014, the right was extended to all employees, regardless of the reason for the request, providing they have at least 26 weeks’ employment with that employer. This is applicable to employers in general practice.
It is thought this will enable all employees to balance their work and personal responsibilities and employers will be able to retain experienced and skilled staff, so as to increase overall levels of participation in the labour market.
Accordingly, someone who wishes to work reduced hours to achieve a better work-life balance will now be entitled to apply for flexible working in the same way as someone who wants to work fewer hours in order to fit in the school run.
What constitutes flexible working?
Job sharing: two people do one job and split the hours.
Working from home: it might be possible to do some or all work from home or anywhere else other than the normal place of work.
Working part-time: working less than full-time hours (usually by working fewer days).
Compressed hours: working full-time hours (usually by working fewer days).
Flexitime: the employee chooses when to start and end work (within agreed limits) but works certain sore hours (such as 10am til 4pm each day).
Annualised hours: the employee has to work a certain number of hours over the year but they have some flexibility about when they work. These are sometimes core hours which the employee regularly works each week and they work the rest of their hours flexibly or when there's extra demand at work.
Staggered hours: the employee has a different start, finish and break time from other workers.
Phased retirement: default retirement age has been abolished and older workers can choose when they want to retire. This means they can reduce their hours and work part-time.
Eight business reasons
But employers can still say ‘no’: The significance of the change might be limited in practice because the right remains a right to request to work flexibly, rather than a right to work flexibly and an employer can still refuse the employee’s flexible working request by giving just one of the eight business reasons for refusing to accommodate the request, which are listed in the legislation as follows:
- Burden of additional costs
- Detrimental effect on ability to meet customer demand
- Inability to reorganise work among existing staff
- Inability to recruit additional staff
- Detrimental impact on quality
- Detrimental impact on performance
- Insufficiency of work during the periods the employee proposes to work
- Planned structural changes
It is not usually difficult for an employer to put forward one or more of these business reasons as a reason for refusing a flexible working request, if the employer does not wish to accommodate the request.
Procedure is simplified: Although the format for making a flexible working request will not change, the old prescriptive procedure with set statutory time limits for handling requests has been abolished and is replaced with a duty on employers to deal with an application in a reasonable manner and to notify the employee of the decision on the application, including any appeal, within three months (unless extended by agreement) of the date of the application.
Acas code and guidance
Acas has produced a statutory Code of Practice and non-statutory guidance to provide practical advice for employers on complying with their obligations.
However, the code is brief in its advice as to what constitutes a ‘reasonable’ procedure, referring to the need to weigh the benefits of the requested change for the employee and the employer’s business against any adverse business impact.
Some employers might find the vagueness of the new process difficult to comply with and might prefer the old more prescriptive approach, which they could continue to use provided it does not breach the legal rights now conferred on employees for their request to be considered reasonably.
For example, if an employer were to require a particular form to be used or to impose a rigid timetable, this might now be considered unreasonable. However, although the new procedure removes the current statutory process around appeals and the right to be accompanied to meetings with the employer, the Acas code recommends employers retain these features when considering requests under the new procedure.
It should be noted that employees can still only make one request to work flexibly in any twelve month period.
Prioritising competing requests
It is possible that an employer may now receive multiple competing requests to work flexibly from two or more employees. If the employer is unable to accommodate all the requests, the question will arise whether the employer should give preference to requests from certain groups such as parents and carers as opposed to dealing with them on a first come first served basis.
The government has decided employers will not be required to prioritise competing requests in this way but will be allowed to take account of any other factors they consider relevant. Where the employer does prioritise, it must still show that it could not accommodate all the requests for business reasons.
Employers must be particularly mindful not to indirectly discriminate against employees on the ground of sex by prioritising, for example, mothers or, if they were to do this, how they could potentially objectively justify the discriminatory treatment.
Avoiding discrimination claims
Under the new rules, the amount of compensation that can be awarded to an employee by an employment tribunal where, for example, an employer has refused their application without giving one of the prescribed business reasons, remains so low (a maximum of eight weeks’ pay) as to be of little threat to an employer.
The real risk to employers in handling flexible working requests remains the risk of claims of discrimination. In the past, women have been able to show that, statistically, they have more childcare responsibilities than men, with the result that the refusal of a woman’s flexible working application has been likely to be seen as indirectly discriminatory.
The extension of the right to request flexible working to all employees with 26 weeks’ service will not remove this risk and as mentioned above, may exacerbate the situation when balancing competing requests.
The decision in 2014 in the case of The Solicitors Regulation Authority v Mitchell highlights the risk of discrimination claims when dealing with flexible working issues. In that case, Ms Mitchell, an employee of the Solicitors Regulation Authority was allowed to work three days in the office and two days at home to help her with child care.
Another member of her team, Mr Singh, doing a similar job to her, had a son with health difficulties and by reason of his child care arrangements and long journey to work, it was agreed he could work flexible hours similar to Ms Mitchell. More than ten years after Ms Mitchell’s arrangement was first put in place, it was revoked by her manager because Ms Mitchell’s children were now of school age.
Ms Mitchell brought a sex discrimination claim comparing her treatment to that of Mr Singh, whose flexible working arrangement had been left undisturbed. The employment appeal tribunal upheld her claim, which turned on the fact that the tribunal did not believe the manager’s reasons for withdrawing Ms Mitchell’s flexible working arrangement and took an unfavourable view of the manager’s description of Ms Mitchell as not being a team player, which it found to be unsubstantiated.
Significantly, the tribunal said that although Mr Singh’s circumstances were not exactly the same as Ms Mitchell’s she was entitled to treat Mr Singh as a suitable comparator for the purpose of comparing their treatment. This case illustrates, when handling requests or changing existing arrangements, an employer must have a plausible explanation unrelated to any protected characteristic such as sex, age or disability for any difference in treatment between one employee and another.
Flexible working for managers
According to the Chartered Institute of Personnel and Development, 63% of workplaces have, for some time, been allowing all employees to request flexible working, suggesting that for larger employers, the new rules will make little difference in practice.
However, the availability of flexible working practices apparently varies significantly depending on the business sector and the employee’s role and gender, with a bias towards women and those in more junior positions. It remains to be seen whether flexible working will become a real option for those in managerial roles without harming their long-term career prospects.
Susan Bernstein is a partner at OGR Stock Denton solicitors in north London.