Since 30 June 2014, all employees have had the right to ask their employer for a change to their contractual terms and conditions of employment so that they can work flexibly, provided they have worked for their employer for 26 weeks continuously by the date on which the application is made. Previously, the right only applied to the parents of children under 17 (or 18 in the case of parents of disabled children) or to those with caring responsibilities for an adult.
As of that date, the statutory procedure for considering requests was removed and replaced by an Advisory, Conciliation and Arbitration Service (Acas) Code of Practice containing guidance on an employer’s duty to consider all requests in a reasonable manner and to reach a decision within three months (unless an extension is agreed). However, employers have the flexibility to refuse a request on business grounds, provided it is for one or more of the eight reasons for so doing specified in the Employment Rights Act 1996.
If an application for flexible working is made, the employer should consider it carefully, looking at the benefits of the requested changes in working conditions for the employee and the business and weighing these against any adverse impact on the business in terms of the possible costs or logistical implications of granting the request.
In reaching a decision, employers must be careful not to inadvertently discriminate against particular employees because of their protected characteristics, thus exposing themselves to a claim under the Equality Act 2010, for example by failing to agree to flexible working arrangements where this would be a reasonable adjustment for a disabled employee.
In addition, an employer must ensure that part-time workers are treated consistently with other workers as the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 make it unlawful to treat part-time workers less favourably as regards their contractual terms and conditions than comparable full-time workers, unless the different treatment can be justified on objective grounds.
Employers are advised to have in place a policy for handling requests for flexible working arrangements as this can help to ensure consistency of treatment across the workforce.
The Code of Practice and revised Acas guidance on the right to request flexible working can be found on the Acas website.