As from 6 April (inclusive) new regulations on flexible working requests will come into effect and employers need to be prepared for the changes.
But what exactly does “flexible working” mean? It encompasses a wide range of alternatives to the traditional 9-5, office based job, and can include such options as part time working, remote working, job sharing, term time working, or annualised hours. There is absolutely no doubt at all that for many prospective employees flexible working is a huge attraction. It’s not just the obvious groups that benefit – such as working parents or people with disabilities. Life can be complex for everyone, and the prospect of achieving a better work/life balance can be an important factor for an employee when deciding whether to remain in post or look for work elsewhere.
Under the new rules, employees will now be able to request flexible working from day one of their contract, rather than having to wait until they have been in post for 26 weeks, so it makes sense for employers to begin now to consider what options they might be able to offer. The benefit to your business will be in better health and wellbeing amongst your employees, the ability to address skills shortages, an improvement in staff retention and recruitment and a more diverse and inclusive workplace.
However, it’s equally true that, for many employers and managers, the downside can be a potential loss of control, reduced knowledge of employee’s actions, trouble with communications and a lack of team spirit.
So how can you respond supportively to employees who want or need flexible working arrangements whilst still managing your business in the way you want?
The new ACAS Code provides a useful starting point. You must use it if an employee makes a “statutory request” for flexible working (i.e. they make the request in writing, mention that it is a statutory request, and explain what kind of change they are seeking). It’s not necessary to follow the Code if you have made an informal agreement with an employee, but it’s still good practice.
“Do I have to agree to a request?”
Yes, you must, unless there is a genuine business reason preventing it.
These reasons are set out in legislation (The Employment Rights Act 1996) and in Section 9 of the Code and are as follows;
a) The burden of additional costs
b) an inability to reorganise work amongst existing staff
c) an inability to recruit additional staff
d) a detrimental impact on quality
e) a detrimental impact on performance
f) a detrimental effect on ability to meet customer demand
g) insufficient work available for the periods the employee proposes to work
h) planned structural changes to the employer’s business
Even if only one or some of these strictures apply, it makes sense, particularly if the employee is valued, to consider if a compromise can be reached. In fact, the theme of the new ACAS Code is to “consider what is possible” and technological developments are making it increasingly easy to meet the needs of a business remotely or within different time scales from the traditional 9-5.
So what should I be doing now to prepare for April 6?
Firstly, with regard to recruitment, it’s a good idea to begin by building flexibility into new job roles. When advertising jobs, consider mentioning that you are willing to discuss flexible working options.
You should ensure that information on how to make a statutory request for flexible working is included in your Staff Handbook and referred to in employee contracts.
If your business is run along traditional lines and you are moving towards a flexible/hybrid workplace, you and/or your manager(s) may benefit from learning the appropriate skills to manage such a workplace effectively, including maintaining communication between individuals and within teams, setting goals and ensuring that employees who work from home are adequately supported.
What if I absolutely can’t offer flexible working?
You should make a decision within two months from the date you first received the request. If you have to reject it, and have good reason to do so, it helps to communicate those reasons to employees and have someone impartial handle any appeal. It is possible that a Tribunal claim could be the outcome, but if you have followed the Code correctly in your decision that will be taken into account by the Tribunal. You cannot subject an employee to detriment for having made a request for flexible working or for having threatened or issued legal proceedings in relation to that request. And don’t forget the requirements of the Equality Act – if a failure to allow flexible working could be shown to constitute indirect discrimination, or more generally any action or failure to take action as a result of the process was discriminatory, an employee could have a claim against you.
A failure to follow the Code does not, in itself, make a person or organisation liable to legal proceedings. However, employment tribunals will take the Code into account in their consideration of a case.
Our solicitors are always on hand to give you friendly, professional advice. Please contact Zoe on 0203 858 9765 or email zoe@mulberryssolicitors.com. Mulberry’s has offices in Brighton and London.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
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