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Flexible working – a new dawn?

07 July 2014

From June 2014, the flexible working legislation has been opened up as part of the government’s bid to reduce red tape, but where does this leave businesses faced with flexible working requests?

Any employee can ask for flexible working arrangements at any time, but in most cases there was no obligation on employers to consider or agree to those requests.

Since 2003, certain employees have had the right to have such requests considered in accordance with a statutory process, and the categories of those eligible have been extended over the years. However, such employees have never gained the unfettered right to demand flexible working arrangements. Rather, employers are only able to turn down requests on certain specified business grounds.

From June 2014, the flexible working legislation has been opened up, as part of the government’s bid to reduce red tape, and also because it believes flexible working is good for business. The right to request it has been extended to all employees after 26 weeks’ service, rather than only those with children under the age of 17 (or 18 if disabled) and certain carers. Furthermore, the previous statutory procedure for considering requests has been replaced with a general duty to consider all requests in a reasonable manner.

However, two important limitations remain. First, employees may only make one request in any 12 month period. Secondly, employers can still refuse a request but only on one of the specified business grounds.

The duty to consider requests “in a reasonable manner” is amplified by an ACAS Code of Practice – which at the time of going to press was in draft form before Parliament. This will have statutory force and will be taken into account by employment tribunals in assessing whether an employer has acted fairly. Alongside this, ACAS has also published non-statutory ‘good practice’ guidance.

One might think that those who need flexible working arrangements because of caring responsibilities outside work would have some sort of priority under the new system. However, that is not the case. As a result, we foresee a ‘first come, first served’ culture emerging, with employers able to turn down requests on genuine business grounds due to the number of other staff already on flexible working arrangements. Indeed employers who prioritise requests from carers may even prompt discrimination claims from others whose requests are refused. The British Chambers of Commerce (BCC) requested clarification on the issue of how to handle multiple conflicting requests. The somewhat jejune response from government was to “put the names in a hat.”  “That’s no way to run a business,” commented the BCC – something with which we would agree!

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Matthew Clayton MA LLM (Cantab), CIPP/E
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