Imminent changes to the law mean that any employee with 26 weeks’ continuous service will have the statutory right to request flexible working – that is, request a formal change to their working arrangements.
Currently, this right is only available to those employees who have a child under the age of 17 or having defined caring responsibilities. This will no longer be the case from 30th June 2014. The statutory procedure via which an employer must consider the request will also be abolished, leaving employers with more flexibility in terms of deadlines. So how do you manage these, presumably much more frequent, requests from 30th June 2014?
The information required by the employee remains the same as it is now, including the details of the change; the date it is proposed to begin; the effect (if any) of the proposed change and the how that effect might be dealt with. Employers should check that the employee has at least 26 weeks’ service and that no other flexible working request has been made in the last 12 months. If both of these criteria are met, then the request is valid. It may be worth asking the employee to indicate on the application whether they are making the request as a reasonable adjustment to their working conditions as a result of a disability.
Discussing the Request
There will be no distinct timeframe within which to have a discussion with an employee about their request. The statutory code of practice says that you have the discussion as soon as possible, in private, at a time, place and location suitable to the employee.
Right to be accompanied
The statutory right to be accompanied at a flexible working discussion will no longer exist – however – as you can imagine, the Code of Practice suggests that allowing a companion is best practice. This might be particularly helpful when the employee lacks confidence or the employee’s first language is not English.
You should weigh up the benefits of any change for the employer and the employee against any negative impact of the change. The reasons for refusal of the request will remain the same under the new regime. There is no longer a deadline by which you must inform the employee of the decision. Remember though, that the whole procedure should be completed within 3 months of the date you received the application.
Dealing with conflicting requests
Although you do not have to prioritise those requests who appear more ‘necessary’ e.g. someone needing to start later so they can drop their child off at school over someone who wants to start later because they ‘just aren’t good in the mornings’, you are allowed to take into consideration any factor you feel relevant. You are not, however, required to make a judgment over which is a more ‘valid’ request. Any requests which are being made as a suggestion for a reasonable adjustment as a result of a disability should be given priority over others, as a failure to make a reasonable adjustment could land you in tribunal.
If you do receive conflicting requests, see if the employees themselves are able to find a compromise. If not, see if other team members who have had a request approved in the past are able to adjust their situation to allow other requests to fit in. If all else fails, the Code suggests a random selection method.
There is no longer a statutory requirement to hold an appeal to a flexible working denial but the Code of Practice includes it as good practice. What is reasonable will depend on the individual circumstances of each case and the employer’s resources which will include the size of the employer. Allowing an appeal may help to rectify any procedural defects which occurred earlier on.
For further clarification please contact the Peninsula Advice Service on 0844 892 2772.