Employers need to consider their current policies and practices and educate managers about these significant changes.
Previously, the law allowed employees the right to request flexible working if they had responsibility for a child under 17, or a child with a disability who is under 18, or are caring for another adult.
The employee had to have at least 26 weeks’ continuous service and have not made an application for flexible working within the previous twelve months. The legislation set out the procedure to be followed by both employer and employee, the timescale for meetings, right of appeal, etc.
The application needed not be granted, and there were eight specific grounds in the Employment Rights Act 1996 on which the employer could refuse the application.
These grounds included the burden of additional costs, as well as detrimental impact on quality and detrimental effect on ability to meet customer demand.
The new regime for flexible working removes the requirement that the request be made to allow the employee to care for another individual, meaning that the right to request flexible working has been extended to all eligible employees.
Many of the existing procedural steps have been relaxed, although there are still specific requirements to be met by the employee in making the request.
Employers need to consider their policies and educate managers.
The employer will need to deal with the application in a reasonable manner and notify the employee of the decision within three months beginning with the date the application was made.
There will no longer be any requirement for an appeal against the employer’s decision (although the ACAS draft code of practice on flexible working still recommends this as best practice).
Failure to deal with requests within the terms of the legislation or subjecting an employee to dismissal or another detriment for making such an application will still leave employers open to employment tribunal claims.
Employers are being encouraged to consider the benefits of flexible working for staff and for the business and to steer away from thinking of flexible working only as part-time work.
Other arrangements would include flexi-time, working from home, job share, compressed hours, term time only, etc.
It is therefore crucial for employers to be aware of the different types of flexible working that can be requested and to give due consideration to any such requests that are made.
As before, employers still need to be aware of their obligation to deal with any request reasonably, to give it due consideration, to inform the employee of their decision and to refuse applications only for one of the prescribed reasons.
It is also crucial to be aware of the risk of discrimination claims, either direct or indirect, and vital to ensure that applications are treated consistently and fairly.
ACAS has issued a draft code of practice with which employers should make themselves familiar. This is a useful guide which will assist employers dealing with flexible working requests.
• Caroline Carr is a partner in the employment law team at BTO Solicitors.