By Cathy Rogan, Legal Adviser in the Working Families helpline team
You may have heard that the right to request flexible working is being extended from parents and carers to all employees from the end of June 2014. We now know a little more about what this will look like in practice.
Currently, once an employee makes a request with all the required information, there is a strict timescale for meetings, set out in Regulations, and an employer who wishes to refuse a request must do so in writing using specified reasons. Breach of the procedure by the employer can result in an award for the employee at an employment tribunal.
The new right to request flexible working will apply to all employees with 26 weeks of service. Unlike now, a lot of the procedure around the new right will be in an Acas (Advisory, Conciliation and Arbitration Service) code rather than legislation, so although it will be good practice to do so, employers don’t have to comply with it. The draft Acas code is now out, and though technically it’s still subject to parliamentary approval it is now unlikely to change significantly.
As before, an employee can only apply only once in any 12 month period and an employee must put their request in writing, including prescribed information (explained in the code). The code suggests an employee should make clear if they are making their request in relation to the Equality Act, presumably to help the employer decide if there is a clash of employees wanting the same thing. The code gives the example of a disabled employee asking for a reasonable adjustment but it must follow that a woman seeking to change her hours for childcare reasons should explain this at the outset.
As with other Acas codes, when reading the code, you need to distinguish between ‘must’ which indicates a legal right and ‘should’ which constitutes good practice. As a general theme, many of the ‘musts’ that we are used to around procedure have now become ‘shoulds’. This means that there are fewer instances where an employee can bring a claim just for breach of procedure, although they may draw a tribunal’s attention to the employer’s failure to do something that they ‘should as part of a wider claim.
On receipt of a request, the employer must consider the request and should discuss the request with the employee. There is no requirement that any discussion is done face-to-face although if possible it should take place in private. An employer should allow a work colleague to be present at the request of the employee. This contrasts with the old procedure where a meeting had to be held within 28 days, unless the employer was willing to agree the request without a meeting.
In practice, meetings were often where the employer and employee would get down to the business of negotiating – finding out what each other actually wanted and getting to a solution. Even though there is no longer a legal requirement to have a meeting (look at all those ‘shoulds’) it would be unwise for employers to give up on meetings altogether.
After the application (and after the meeting if they have one) the employer’s job at this point is to weigh the benefits to the employee and the business against the adverse business impact of implementing changes. As before, they can only refuse for one of the prescribed business related reasons – these haven’t changed, and you can find them here. The guidance includes examples of how refusal could be discrimination and makes suggestions as to what to do if several employees ask for the same thing at once. The suggestion of “drawing names from a hat” has rightly been dropped since earlier drafts.
The employer must inform the employee “as soon as possible” of their decision and should do so in writing. If an employer is rejecting a request, they should allow the employee to appeal. The appeal does not need to be face-to-face.
All requests (including appeals where the employer allows these) must be considered and decided on within three months from first receipt, but this can be extended with the agreement of the employee. Interestingly, the example in the guidance of where such an extension might be granted is where the employer might want to trial the flexible arrangement before a decision is reached.
This could be useful for employees who are worried that offering a trial period is a way of fobbing them off. Previously the procedure didn’t stop for the trial period, so employees would have to decide whether to let procedural breaches go without knowing if their request would be agreed permanently.
All in all, the draft code of practice is a bit of a curate’s egg – good in parts. Whilst Working Families warmly welcome the extension of the right to request flexible working to all employees, there is a very real worry that an employer can sit on a request for three months before refusing verbally, with no meeting and no right to appeal.
In such circumstances it is unlikely that the employee will feel their request has been listened to or taken seriously. It remains to be seen how employers will follow the new code and what they will retain of the old regime.