The legal right to request flexible working arrangements in the UK was extended to all employees with 26 weeks of service starting June 30, 2014. Previously this right was restricted to employees with child or elder care responsibilities. Along with this change, the process for handling requests was replaced with a requirement for employers to deal with applications in a "reasonable manner" within three months. Employment tribunals must consider guidelines from ACAS, the UK conciliation service, when determining if an employer behaved reasonably. While the process changed, the reasons an employer can deny a request and penalties for improper handling remained the same.

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New flexible working regime in United Kingdom
Publication Date: 26 June 2014 | Author(s): Laura Farnsworth Member Firm(s): Lewis Silkin
LLP Country: United Kingdom
The legal right to request a flexible working arrangement in the UK is being extended to all
employees with 26 weeks’ service, with effect from 30 June 2014. Until then, it has been restricted
to those with caring responsibilities for young children or dependant adults.
This means that from 30 June any employee with 26 weeks’ continuous service has the right to
ask for a change to the hours or times they work or where they work - for any reason.
Alongside this, the existing “right to request” procedure - with its meetings, appeals and strict time
limits – is being repealed and replaced with a general requirement for employers to deal with
applications “in a reasonable manner” and to notify the employee of their decision within a three-
month time period. (This is extendable by agreement.)
Employment tribunals must have regard to a new code of practice issued by the UK’s conciliation
service ACAS when determining whether an employer has behaved reasonably. This
recommends holding a meeting to consider whether to approve a request, at which the employee
should be allowed the right to be accompanied (although this is no longer mandatory). It also
recommends allowing an appeal if the request is turned down (but notably does not specifically
mention an appeal meeting). The Code is supported by a new ACAS guide, including practical
examples.
What is not changing
Employees still have to submit a written request in the same format as before (although they will
no longer have to show they meet the eligibility requirements). They remain limited to one request
within each 12-month period.
The eight permitted grounds on which an employer may turn down a flexible working request also
remain unchanged:
• the burden of additional costs
• an inability to reorganise work amongst existing staff
• an inability to recruit additional staff
• a detrimental impact on quality
• a detrimental impact on performance
• detrimental effect on ability to meet customer demand
• insufficient work for the periods the employee proposes to work
• a planned structural change to the employer’s business.
The penalty for failing to consider a request in the manner prescribed by legislation is still what the
tribunal determines is just and equitable, up to a maximum of eight weeks’ pay (subject to the
statutory limit on a week’s pay, currently £464).
Implications for employers

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One advantage for employers is the removal of “red tape”, such as the requirements to hold
meetings within strict time periods (normally 14 days). Employers might also decide they will no
longer offer an automatic right of appeal against a decision to turn down a request (or, at any rate,
not guarantee an appeal meeting). However, because the prescriptive statutory procedure for
dealing with requests is being replaced with a duty to deal with requests in a “reasonable” manner,
it is crucial for employers to ensure they are familiar with the new code of practice and guidance
from ACAS and assess how the changes affect their approach.
Employers should review and amend their existing policies on flexible working and home working
and consider how they are going to prioritise requests and document any agreed
changes. Managers should also be trained so that they are fully equipped to deal with requests
under the new regime.
In particular, one likely outcome is that employers may start receiving multiple requests from
different employees asking to change their working patterns for diverse reasons. In many cases,
employers will not be able to agree to all requests. The risk of discrimination claims is likely to
increase because of the potential for many more employees with protected characteristics to make
a request.
ACAS recommends that employers should set out a policy framework for deciding between
competing requests. Even if that step is not taken, it is important for managers and HR to become
attuned to the need to be more sensitive to requests from (for example) older employees, or those
with disabilities, given the increased risk of discrimination claims from these groups.
It is also worth remembering that the risk of refusing flexible working leading to indirect sex
discrimination claims from employees with caring responsibilities remains the same as under the
previous rules.
Taken from the Ius Laboris Knowledge Base: www.globalhrlaw.com
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