Flexible working for all?

The definition of ‘carers’ includes parents of school age children, but also those who care for disabled relatives, spouses, or elderly parents. The change from having to consider child care responsibilities to wider considerations has taken place gradually. But the employer is only required to ‘consider’ the request. The employer can reasonably refuse to grant any flexible working request if it would result in a detrimental effect on the business, including incurring additional costs, have a negative impact on the quality of service or performance, an inability to meet customer demands, or result in insufficient work for the new hours the employee wants to work.

An employer only has to demonstrate that he has taken the request seriously and met with the employee to discuss the situation and permitted an appeal against that decision, before deciding that part time working is really not appropriate for his particular business. Employers also have to treat every application the same- it would be difficult to justify granting part time flexible working to one employee whilst declining it to another.

The obligation to treat all employees’ requests for flexible working has to be taken seriously, not least because of the implications of a refusal. An employee with caring responsibilities may have to resign if he or she cannot fit the employer’s core hours around their other commitments. For this reason legislation sets out a time line, starting with the employee making a written request, an employer arranging a meeting within 28 days of that request, and a decision to be given to the employee witin14 days of that meeting, clearly stating the reasons for any refusal. There is then an opportunity to appeal that decision within a further14 days, and an appeal hearing within another 14 days. Any of these periods can within reason be varied as necessary to accommodate the parties. The procedure is intended to be fair and reasonable.

If however an employee feels he has been unfairly treated and believes the employer’s refusal is unreasonable then an application may be made to the Employment Tribunals within 3 months of the date he was told that the appeal had been declined.

Disagreement is most likely to arise where an employee considers the reasons for refusal have not been carefully considered. This is especially likely if flexible working has been granted in similar circumstances in the past. There is also the potential for a claim for discrimination: a male carer should be treated the same as a female, and a disabled person’s carer has an expectation that reasonable adjustments should be made.

From 30 June 2014 the law will change to extend the right to make flexible working requests to all employees. This extends the right to request flexible working to employees who do not have primary caring responsibilities

In future any employee will be able to make a flexible working request. For example relatives who are not the main carers in the family, could also apply for flexible working, and others may prefer to miss the rush hour traffic by stating work an hour later, and perhaps working an hour later. Working from home would accommodate many employees who would otherwise face a long commute, or perhaps ease older employees into a phased retirement. There are also changes to the way in which applications are dealt with.

Previously regulations set out a specific method for dealing with requests. These no longer exist. Instead the application has to be dealt with in a “reasonable” manner, and the employee has to receive the decision within 3 months, but this can be extended by agreement between the employer and the employee. The extension can be agreed either before or at the end of the initial 3 month decision period.

There is now no automatic right to an appeal. However the employer can allow an appeal, indeed more than one appeal.

Any failure to attend meetings (without good reason) will result in the application being treated as withdrawn. The employer must then write to the employee explaining why the request for flexible working has been withdrawn.

An application can be made to an Employment Tribunal within 3 months of receiving the decision, if the employer fails to deal with the request reasonably, or fails to notify the employee within the decision period. (The employer has to consider the same grounds for refusal as previously, ranging from costs burdens, negative impact on customers, quality of service, proposed restructure and work availability).

It is recommended that employers provide a flexible working policy setting out the right to request flexible working, and the procedure to be followed when a request is made.

Whilst any changes can be viewed as potentially problematic, many employees may find a more relaxed approach to their working hours in the office beneficial. It may suit some employers, whilst others may find it totally impracticable, with negative implications on cost and the provision of a quality service. Providing requests are taken seriously, and a fair process is undertaken, with employers willing to consider flexibility in their approach and the working practices, there is no reason why a new way of working could not result in a more productive and happier work force.

Article by Liz Whitehead from law firm Hart Brown

Liz’s specialism is employment law acting for both employees and employers. “It is an ever changing area which makes it so interesting but also difficult for employers not to find themselves in difficulty” says Liz.

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