From 30 June 2014 an employee will have the right to make a flexible working request provided they have at least 26 weeks’ continuous service with you. What does this major change mean for your Flexible Working Policy?
No more cares
There will be some major changes to the statutory right to make a flexible working request. In a nutshell, the requirement for: (1) the employee to be responsible for the care of a child or specified adult; and (2) the condition that the employee’s purpose for the flexible working request is to enable them to care for that child or adult, will be removed.
Open to all
What this means in practice is that the right to request flexible working will apply to all employees. However, they must have: (1) worked for you for a continuous period of at least 26 weeks at the date their application is made; and (2) not made another application to work flexibly during the previous twelve months. Under the right, an employee can apply to vary the hours they work, the times they work or their place of work, i.e. between their home and your place of business.
Not an automatic right
Although you may ask the employee about their reason(s) for making the flexible working request or its purpose, they’re under no obligation to tell you this. Of course, they might be making the request because they do have care responsibilities but they could also be making it for a whole host of other reasons, e.g. to accommodate a period of study, to undertake charity work or just because they fancy every Friday off. But as has always been case, they’ve no automatic right to work flexibly and you have the right to turn down the request provided you do so for one, or more, of eight permitted business reasons.
Grounds for refusal
These are exactly the same as the previous statutory grounds for refusing a flexible working request from an employee with caring responsibilities (which remain in force until 30 June 2014), namely:
(1) the burden of additional costs;
(2) the detrimental effect it would have on ability to meet customer demand;
(3) inability to reorganise work amongst existing staff;
(4) inability to recruit additional staff;
(5) the detrimental impact it would have on quality;
(6) the detrimental impact it would have on performance;
(7) insufficiency of work available during the period when the employee proposes to work; and
(8) planned structural changes.
As a result of this change, you will need to review your existing Flexible Working Policy and all other supporting documents an overhaul on 30 June 2014 to reflect the fact that all employees – not just those with certain care responsibilities – will have the right to make a request provided they have at least 26 weeks’ continuous employment.
Word of warning.
Do be aware that rejecting a flexible working request could still give rise to other claims, e.g. indirect sex discrimination where the request is made by a mother returning from maternity leave or a disability discrimination claim where the request is made as a reasonable adjustment for a disability. So don’t reject an application without careful consideration.