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Avoid Snapping Under the New Flexible Working Regime Avoid Snapping Under the New Flexible Working Regime

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Jun 14

Avoid Snapping Under the New Flexible Working Regime

Written by Victoria Notman
Associate

DDI: 01423 724605
E: victoria.notman@raworths.co.uk

New legislation comes into force on 30 June 2014. This expands, and allegedly simplifies, the current right to request flexible working. To bend with the times employers need to know what difference the changes will make. The simple answer is probably not a lot!

There will still be no “right” to work flexibly or part-time. The amendments expand the category of employees who may make a request and remove some of the strict timeframes on both parties as to when requests must be made, considered, refused and appealed.

A legitimate Right to Request is currently limited to employees with 26 weeks continuous service seeking a variation to their contractual working patterns in order to care for children under 17 (18 if the child is disabled) or adults who need care.

From 30 June 2014, the Right to Request will differ in the following material ways:

  • Any employee with 26 weeks continuous service will have the right to request flexible working (not just those with caring responsibilities).
  • The procedure will be less prescriptive: The employer will have a three-month decision period within which to consider the request, discuss it with the employee and notify the outcome and the right to appeal.
  • The employer must deal with the application in a reasonable manner.
  • The employer may treat the request as having been withdrawn by the employee if the employee fails to attend a meeting arranged to discuss their request and a further meeting rearranged for that purpose.It will still only be possible to make one request for flexible working within a twelve-month period. An Acas Code of Practice will guide Tribunals as to whether employers have “dealt with the application in a reasonable manner”.

The eight statutory grounds for refusing an application will remain the same:

  • The burden of additional costs.
  • Detrimental effect on ability to meet customer demand.
  • Inability to reorganize work among existing staff.
  • Inability to recruit additional staff.
  • Detrimental impact on quality.
  • Detrimental impact on performance.
  • Insufficiency of work when employee proposes to work.
  • Planned structural chances.

Under both regimes a Tribunal cannot question the subjective business reasons behind an employer’s decision. Scrutiny remains limited to:

  • The procedure followed by the employer.
  • Whether the request was taken seriously.
  • Whether the decision was based on the correct facts.
  • Whether the reason given falls within the permitted eight reasons.

Remedies available in the Tribunal also remain limited to ordering the employer to reconsider the application and/or awarding compensation of up to 8 weeks pay (capped at £464 per week).

But beware – the interrelationship with more potent claims for sex discrimination – damages are unlimited. However, applicants refused flexible working where they have no caring responsibilities may be harder pressed to establish discrimination.

Advice on flexible working policies, dealing with requests in a reasonable manner and claims is available from the Employment Team at Raworths.

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