Flexible Working Changes

The Flexible Working Regulations will come into force on the 30 June 2014, amending the right to make flexible working requests.

Simply put, the new regulations seek to simplify the existing process of making flexible working requests.

In order to examine the changes brought about by the new regulations, perhaps it would be helpful to first summarise the position prior to 30 June 2014.

The previous system was subject to substantial criticism from both employers and employees alike. In particular, the previous regime was thought to be too restrictive in limiting flexible working to carers and parents of children only. Furthermore, the statutory procedure was condemned for being cumbersome and needlessly complicated.

Accordingly, following a 3 month consultation, the government announced its attention to simply flexible working requests and achieved through the amendments made to the Children’s and Families Act 2014.

The Flexible Working Regulations therefore introduced the following procedure:

• Any employee with at least 26 weeks continuous service can make a flexible working request.
• A request should be made by the employee in writing. The employer then has three months to consider the request and communicate their decision to the employee.
• Employers must deal with request in a reasonable manner and if it is to reject a request they still must rely on one or more of eight specified reasons set out in legislation.
• Only one request can be made within a 12 month period.

When making a request for flexible working an employee would usually be asking for one of the following:

• A change to working hours
• A change to the times that they are required to work
• A change to the place of work

As mentioned above, when making a request an employee no longer has to comply with the statutory scheme. A request now should simply:

• Be in writing.
• Be dated.
• Specify what change the employee wishes to make.

After receiving a request the employer now has a period of three months to consider the request and communicate their decision to the employee.

If the employer agrees to the request the change will amount to a contractual variation. It is good practice for employers to obtain a new contract of employment signed by the employee confirming the new terms.

If the employer rejects the flexible working request, in doing so it must rely on one or more of the following reasons:

• The burden of additional costs.
• Detrimental effect on ability to meet customer demand.
• Inability to reorganise work among existing staff.
• Inability to recruit additional staff.
• Detrimental impact on quality.
• Detrimental impact on performance.
• Insufficiency of work during the periods the employee proposes to work.
• Planned structural changes.

Although employers are no longer required to give a detailed explanation to the employee as to why their request has not been authorised, it still recommend that employers at least confirm on what ground the request is being rejected.

Finally, if a flexible working request is rejected by the employer, the employee must be given leave to appeal.