In November 2012, the government announced its decision to extend the right to request flexible working to all employees. The right currently only applies to working parents and carers. In due course, employers must be ready to deal with flexible working requests from all employees.
In the government’s response to the ‘Consultation on Modern Workplaces’ (published in May 2011), the extension of the right to request flexible working to all employees has been affirmed. The right will become available in 2014 following its incorporation into the Children and Families Bill, to all employees who have completed 26 weeks service with their employer.
Presently the right to request flexible working is available to employees who have 26 weeks continuous service; and
- have children under 17; or
- have a disabled child / children under 18; or
- are carers.
Employees are only permitted to make one request in any 12 month period and employers are obliged to consider the request in accordance with the statutorily prescribed time limits, giving full consideration to the request and can reject the request in certain prescribed circumstances.
The changes that are currently proposed by the government are as follows:
- The right to request flexible working is extended to all employees with 26 weeks service;
- A code of practice will provide guidance on how a request should be dealt with, including the obligation on the employer to deal with requests within a reasonable period of time and how to deal with conflicting requests from different employees.
The limit on one request being made in any 12 month period will remain and small businesses will not be excluded from this legislation.
The proposals are silent in regards to whether a reason for the request to work flexibly must be given, as presently the request must be made in respect of caring for another and to assist in the provision of their care. Therefore, requests could be made on a number of basis from the sublime to the ridiculous, for example a request for time to undertake charitable activities to a request to have Monday mornings off as Sunday night is darts night in the pub!
At present it is not clear whether the existing reasons for declining a flexible working request will still be utilised.
How does this affect employers?
At present this legislation has not been implemented and as such does not affect any flexible working requests currently being received or submitted, which must be dealt with in accordance with the existing procedures. Indeed, all employees can already ask to vary their contract to work amended or flexible hours if they wish to do so, but without this legislation they have no right to do so.
Therefore, the implementation of this legislation is not expected to have a significant impact on the workforce generally; however some predict there may possibly be an increase in grandparents requesting flexible hours in a bid to help with childcare.
However, without the legislation imposing a requirement to supply a reason behind the request to work flexibly, this omission may pose a number of problems for employers asked to judge one flexible working request over another. Hopefully the code of practice will rectify this omission and provide suitable guidance without this matter being decided by case law.
On the downside, employers could face discontent within the workforce where one flexible working request is granted over another and may force those employees with childcare or dependent care issues to search for work elsewhere, if their request is overlooked in favour of another employee’s request.
On the plus side, the new code of practice is set to remove some of the current statutory time limits which require employers to have a number of specific meetings within a set timescale to make the flexible working arrangements. This is good news for employers as they will no longer have to panic about those time limits. The code will also provide that employers are required to act reasonably, although reasonableness is a question which is likely to be determined at the Employment Tribunal.
The government has incorporated these proposals into their tranche of ‘family friendly’ legislation, however by extending the right to all employees regardless of the reason for the request and also by effectively removing the specific reasons for childcare or dependants care, this specific piece of legislation may not in real terms support the return to work of those with families.
Prior to this legislation being introduced, it is advisable that employers should assess their flexible working policies and amend them accordingly to ensure compliance.
For further information on flexible working or family friendly policies, please contact our Employment team.