FLEXIBLE WORKING

RMT helpline 0800 376 3706 :: sept 2014 :: RMTnews 22 Since July 2014, all employees in England, Scotland and Wales who have been continuously employed for at least 26 weeks have had the right to ask to work flexibly. It is vital that workers are aware of the changes and understand their rights. The key changes are as follows: • The right to request flexible working has been extended to all eligible employees, not just those with caring responsibilities for children and dependents • The previous procedure has been repealed and replaced with a duty on the employer to deal with requests in “a reasonable manner” • There is no statutory right of appeal after a request has been refused • There is no statutory right to be accompanied at a meeting with an employer to discuss a flexible working request • Employers can treat a request as withdrawn if the employee fails to attend two meetings to discuss a flexible working request. The right to request is just that - a right to ask to work flexibly, and not a right to be allowed to work flexibly. Employees can ask for a change in their working hours, for example from full time to part time hours, and the flexibility to work from home. Requests must be dated, and made in writing stating that it is a statutory request, and detailing the change applied for including what effect, if any, the change would have on the employer, and how the change could be dealt with. It must also confirm if the employee has made a previous flexible working request and if so, when. Employees can only make a request once within a 12-month period, starting with the date they made the application. Employees who want to return to work on a flexible (but temporary) basis, for example following a long period of sickness absence, should check their capability or ill-health policies and contact their union representative. HOW SHOULD AN EMPLOYER RESPOND? The new changes place a general duty on the employer to deal with the flexible working application in a “reasonable manner” and notify the employee of their decision within three months of the date of the request unless a longer period is agreed. Unhelpfully, what constitutes a “reasonable manner” is not defined, though ACAS’ code of practice on flexible working recommends that employers: • Consider the request and discuss it with the employee as soon as possible • Allow the employee to be accompanied and tell them this prior to any discussion • Inform the employee of their decision in writing as soon as possible • Allow the employee to appeal the decision. While there is no statutory right for a worker to be accompanied by a colleague in a meeting or to appeal the employer’s decision, tribunals can take the ACAS code into account when considering if an employer has acted in a “reasonable manner”. GROUNDS FOR REFUSAL The grounds for an employer to refuse a request remain the same as they were before the changes. Employers can refuse an application for one of the following reasons: • Burden of additional cost • Detrimental effects on ability to meet customer demands • Inability to reorganise work among existing staff • Inability to recruit additional staff, detrimental impact on quality or detrimental impact on performance • Insufficiency of work during the periods the employee proposes to work • Planned structural changes. This gives employers a great deal of scope to refuse a request, particularly as they do not have to explain their reasoning. However, guidance on the government’s Business Information website (www.nibusinessinfo.co.uk) advises employers to explain why the relevant business ground applies. Although there is no statutory obligation on employers to notify their employees in writing of their decision, the ACAS code recommends that they do so in order to “avoid future confusion on what was decided”. Aside from this, employers who fail to put their decision in writing are likely to find it more difficult to defend a claim. Employers must respond to (and make a decision about) a request within three months of receiving it, but can extend this period if the employee agrees as long as they do so within six months of the original request. In summary, employers have considerable scope to refuse a request for flexible working on business grounds but the ACAS Code means employers should follow strict guidelines to avoid being deemed to have acted unreasonably when assessing a request. FLEXIBLE WORKING Employment rights solicitor at Thompsons Jo Seery explains changes to rights to flexible working LEGAL