Previously employees with children aged 16 or under and those with disabled children under the age of 18, had the right to apply to work more flexibly.Now every employee with at least 26 weeks' continuous employment has a right to make a flexible working request.  Although it must be remembered that an eligible employee does not have the right to work flexibly, but rather a right to submit a request to their employer for flexible working.

What does flexible working mean?

It can include changes to an employee's hours of work, part time working, flexi-time, job sharing, shift work, and the place where you work, for example home working.

How should requests be made?

The employee is required to put in a formal request in writing, which states they are making a flexible working request and provides information to confirm they meet the eligibility criteria.  They must then explain their reasons for the request and provide as much information as they can about the changes they are requesting, giving the date from which they would like the changes to take effect.  Additionally, they must explain the likely effects those changes will have on their employment.An employee can only make one request within 12 months.

How should an employer deal with requests?

An employer's duty is only to consider a request in a 'reasonable manner', there is no longer the prescriptive process whereby meetings had to be held within 28 days of receiving letters.  Notwithstanding this the process must be completed within three months of receipt of the request.Whilst not statutory, an employer should as a matter of good practice, meet with the employee to discuss their request.  Likewise, it would be advisable to allow them to be accompanied at the meeting by a either a work colleague or trade union official.An employer should also discuss with the employee, where flexible working requests are accepted or accepted with modifications, how and when the changes may be implemented.  The relevant changes should then be incorporated into the employee's contract of employment.

Refusing a flexible working request

An employer can refuse a request after giving it due consideration. However, the employer must have a good business reason for doing so.  Refusal can only be for one (or more) of the eight statutory reasons set out in the legislation. Those reasons being:

• the inability to reorganise work amongst existing staff
• the inability to recruit additional staff
• the burden of additional costs
• a detrimental impact on quality
• a detrimental impact on performance
• a detrimental effect on ability to meet customer demand
• insufficient work for the periods the employee proposes to work; or
• a planned structural change to the business.

Following refusal of a request an employer must provide an explanation as to why the request has been refused to the employee.  Furthermore, employees no longer have a right to appeal a decision to refuse a request.

What does an employer need to do?

An employer should familiarise themselves with the new ACAS code of practice on handling requests to work flexibly, since the Employment Tribunal can take into account the code when deciding whether or not a request has been handled reasonably.An employer should also review and amend their flexible working policy.

Risks to the employer

The average cost for an employer defending a flexible working claim is £5,900 and following the legislative changes the government estimates an increase of 50% in the number of such claims.Whilst, compensation for breach of the regulations remains low at 8 weeks capped pay, the biggest risk to an employer is a potential discrimination claim.

How can we help you?

If you require any advice on your rights as an employer or employee in regard to flexible working hours, you can contact Farnworth Rose solicitors.Call us today on 01282 695 400 or simply complete the online contact form to arrange a quick call-back.