Extension of the right to request flexible working

The Government's Consultation on Modern Workplaces set out a plan for a culture of flexible, family-friendly employment practices, which included extending the right to request flexible working to all employees, rather than just those who qualify as parents or carers. Under Part 9 of the Children and Families Act, together with the Flexible Working Regulations 2014, the extension of the right to request flexible working will come into force on 30 June 2014.

While the Government have heralded in the change as simplifying the process, some parts of the existing law (primarily Part 8A Flexible Working, Sections 80F-I of the Employment Rights Act 1996) will remain in force, so it is important to understand what will change, what stays the same and how the new Acas Code of Practice on managing flexible requests will interact with the new legislative framework.

Changes to current law

– In addition to extending the right to request flexible working to all employees with 26 weeks' service, other key changes are as follows:

– The statutory procedure which an employer has to observe when considering requests will be replaced with a duty to deal with the request in a     reasonable manner.

– The employer will be required to notify the employee of the decision within 3 months of the application date, but the time period can be extended   by agreement.

– If a meeting is arranged to discuss the application, including any appeal, and the employee fails to attend both this and a rearranged meeting       without a good reason, the request can be considered as withdrawn.

– An employee will no longer have the statutory right to be accompanied at meetings to discuss their request or any subsequent appeal (but see     Paragraph 5 of the new Acas Code below).

– A tribunal claim can be presented if the employer has not dealt with the request in a reasonable manner or wrongly treats the request as               withdrawn or if the employer's decision is not made in time.

Law remaining in force

– Key elements of the current law remaining in force are as follows:

– An employee must comply with S.80F(2)(a)to(c) of the ERA 1996 when making an application, i.e. stating it is a statutory flexible working             request, the change applied for, the proposed date of change and what effect the change would have and how it might be dealt with.

– Only one statutory flexible working request can be made in any 12-month period.

– A rejection of a request can only be on the basis of one or more of the statutory permitted reasons in S.80G(1)(b) of the ERA 1996.

– An employee will continue to be able to make a tribunal claim that a decision to reject the application was based on incorrect facts.

Acas Code and guidance on flexible working

To accompany the legislative changes, the Government asked Acas to produce a statutory code of practice that sets out the principles that employers should follow when managing requests under the extended right to request flexible working. Acas has published a Code Of Practice For Handling Requests To Work Flexibly In A Reasonable Manner (Annex A of the document the final Code is expected shortly but will be no different to the draft) and Handling requests to work flexibly in a reasonable manner: an Acas guide, to help employers prepare for the new statutory scheme.

Paragraphs 1 and 2 of the Code highlight that it is intended to help employers deal with written requests made by employees under the statutory right to request flexible working. The Code will also be taken into account by employment tribunals when considering relevant cases and in particular whether the employer has dealt with a request in a reasonable manner.

The Code is deliberately concise and “principles-based” around what a reasonable process requires. The procedural aspects of dealing with requests are set out in Paragraphs 3 to 12, and Paragraphs 13 and 14 deal with the principles involved in dealing with requests promptly. The Code must be followed when the new right comes into force, along with the practical guide on handling requests referred to above, and employers are advised to incorporate the operating principles into their own policy and procedures.

In particular, note that while the statutory right to accompaniment at any formal meetings within the procedure will be abolished, Paragraph 5 of the Code states that employers should allow an employee to be accompanied by a work colleague for this and any appeal discussion and the employee should be informed about this prior to the discussion.

Note: Although the Acas Code and guide represent best practice, both documents nevertheless relate to statutory requests for flexible working made on or after 30 June 2014. In the meantime the statutory provisions in Part 8A Flexible Working of the Employment Rights Act 1996 (and accompanying legislation) apply.

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