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Flexible working policies are not new but employers must regularly adapt them to suit their changing priorities. In the last decade, we have seen a cultural shift in non-traditional working arrangements. Previously, flexible working was seen to be the preserve of parents and carers wishing to work part-time or compressed hours, for example. The expansion of the statutory right to request flexible working to all employees in 2014, coupled with improvements to technology, mean that such practices are becoming the norm. Employers increasingly feel able to accommodate requests when lack of technology might have prevented them from doing so in the past.
According to Labour Force Survey figures, 92% of employers have made at least one form of flexible working practice available in their workplace over the last 10 years and 60% of employees have done some form of flexible working in the last 12 months. Of course, not all organisations can accommodate flexible working, with smaller employers in particular being unable to accept certain requests.
Many employers will not have reviewed their flexible working policies since the 2014 extension of the statutory framework (contained in ss 80F to 80I of the Employment Rights Act 1996 and the Flexible Working Regulations 2014). The technological and cultural changes noted above mean that forward-looking employers should regularly review their offerings to ensure they reflect the organisation’s values and business needs. Having a comprehensive policy is also an essential first step in defending tribunal claims. The remedies for breach of the statutory framework itself are pretty limited: employment tribunals can order reconsideration of the request and/or compensation of up to eight weeks’ pay, currently capped at Ј4,064.
However, employees often seek a more substantial remedy by claiming that an employer’s decision to refuse alternative working arrangements is indirect discrimination. Female employees with caring responsibilities and employees with disabilities may be able to mount a successful challenge of this kind. Workers can also bring discrimination claims, even though the statutory scheme does not apply to them.Acas code A good place to start when drafting a flexible working policy is to refer to the Acas guidance. There are two Acas documents supporting the statutory framework: the statutory Code of Practice on Handling in a reasonable manner requests to work flexibly’; and the Acas guide on the right to request flexible working.Employment tribunals must take the Acas code into account when relevant, whereas the guide provides best practice guidance for employers. Status of the policy As with many employment policies, where commercially feasible, a flexible working policy should be non-contractual and this should be clearly stated at the start of the policy. This enables the employer to review and adapt the policy without implementing contractual changes. It also avoids the argument that failure to follow the flexible working procedure amounts to a breach of contract. If a policy is contractual or has been negotiated through collective bargaining, the employer will need to negotiate and agree any changes to it with employees or the union. Eligibility Every employee has the statutory right to request flexible working after 26 weeks’ service. An employee may only make a request under the statutory framework once in any 12-month period. One potential issue which can be addressed in a comprehensive policy is how to deal with requests from individuals who are not eligible to bring a request under the statutory scheme. This would include employees who do not have the necessary qualifying service, employees who have already made a request in the last 12 months and individuals who do not have employee’ status. An employer is not obliged to hear requests from such individuals. However, it may be beneficial to include an informal procedure for non-qualifying employees for two key reasons.First, employers engaging a high proportion of workers (rather than employees) may want to introduce a similar procedure for all members of staff, regardless of their employment arrangements. Second, despite not being eligible under the statutory scheme, a worker could still bring a discrimination claim, as highlighted above. Having a short-form or informal procedure to follow for these individuals might help establish a defence, as the employer will have provided the individual with a solid business reason for rejecting the flexible working request. In any event, the flexible working policy should make clear that the statutory framework only applies to eligible employees. Forms of flexible workingThe types of flexible working are ever evolving. Employers can refer in the policy to the forms of working provided in the statutory framework or provide more information on the options available in their own workplace. Formal procedure The statutory procedure is fiddly, so an employer would be well advised to set out the information that it requires for the flexible working request to be valid and the process which it will follow in considering the request. The Acas guide suggests that a flexible working policy should cover the points listed below:How to make an application [level 2 sub]It is useful to append a standard application form to the policy. This can set out the level of detail which is required when an employee makes a request and will assist the employer in making a decision. Possible reasons for rejecting a request [level 2 sub]There are eight business reasons for which an employer may reject a flexible working request. It is helpful to set these out in the policy so that managers and employees are fully aware of them (see box on pxx). Holding a meeting [level 2 sub]The Acas code suggests that the employer should arrange to meet the employee as soon as possible after receipt of their request, unless it can accept the request without a meeting. It is good practice to set out the matters which will be discussed at the meeting. Typically, these will include discussing the impact of the proposed arrangements on the employee’s and colleagues’ work and proposed alternatives if the employer cannot accommodate the original request. Accompaniment [level 2 sub]The statutory framework does not give employees the right to bring a companion to the meeting. However, the Acas code recommends that employers should allow employees to be accompanied by a colleague or a trade union representative. If an employer is minded to allow this, then the policy should set out the role (and limitations) of the companion. A tribunal may consider failure to allow an employee to be accompanied as part of the overall reasonableness’ of the process (see appeal’ below in this regard too). Trial period [level 2 sub]An employer may wish to make the acceptance of a flexible working request conditional upon a successful trial period. The statutory framework does not provide for or regulate trial periods although there is nothing preventing the employer and the employee from agreeing to one. A flexible working policy should set out what the employer expects from a trial period and when it will finish. Decision [level 2 sub]If the employer accepts the flexible working request, it should make clear what changes have been agreed and when they will come into effect. The changes to the employee’s contract will be permanent and so an employer may wish to issue a new contract to reflect those changes or set them out in a letter. In any event, the employer is obliged to issue a section 4 statement’, which sets out the changes to the written statement of employment particulars, within one month of the changes taking effect. If the employer reject the flexible working request, it must tell the employee within the decision period (as set out in Time limits’ below). It is good practice to say which of the eight business reasons support the rejection and set out the appeal procedure. Appeal [level 2 sub]The statutory framework does not require an appeal process but the Acas code recommends allowing the right. As with the right to be accompanied, it is likely to be considered as part of the overall reasonableness of the process. Including the right to appeal may be helpful to an employer defending a trickier discrimination case should that ever be necessary. Treating the request as withdrawn [level 2 sub]An employer may treat the flexible working request as withdrawn if the employee, without good reason, twice fails to attend a meeting arranged to discuss their request. The policy should explicitly state this. Time limits [level 2 sub]An employer needs to complete the formal procedure and notify the employee of its decision within three months of receiving the request. This can be extended by agreement and so it is helpful to outline the procedure for doing this within the policy. Informal procedure It is helpful to include a simplified, informal process to follow for those individuals not eligible for the statutory procedure. Employers can also use this if an employee is requesting a temporary change. As employees and workers will have protection from discrimination outside the statutory scheme, it is important to take care even with informal requests. An employer should treat requests consistently, particularly if it receives a number of requests from a particular group of people, such as parents. Employers will want to guide people to follow either the statutory procedure or the informal process to allow the correct HR or management staff to deal with the requests and avoid potential liability. Temporary changes The acceptance of a flexible working request effects a permanent change to the employee’s terms and conditions of employment. Temporary changes may soon be allowed under the statutory framework, following a recommendation by the Taylor Review, which the government is considering as part of its Good Work Plan. For the time being, employers should handle requests for temporary changes under their informal procedure. Otherwise, they may inadvertently agree to a permanent contractual change despite this not being the parties’ intention. Competing requestsAn employer may receive competing requests from two or more employees. If it is unable to accommodate both requests, it will have to give preference to one individual or group of employees.An employer is not required to make a value judgement about the most deserving case in making its decision, nor is it required to prioritise one particular group of employees, such as parents. However, it is required to consider requests in the order in which it receives them. This means that the business context may have changed by the time it considers the second request. The Acas code gives little guidance on what to do when receiving competing requests, apart from reminding employers not to discriminate. An employer may therefore want to supplement the Acas code in its own policy, providing a mechanism to use when it receives competing requests and there is a stalemate. For example, it might state that it will use trial periods to decide which request to accept and that it will review failed requests subsequently. Or it might have a mediation process to try and reach a compromise if it cannot accommodate both requests. In most circumstances, the employer will consider each case on its own merits by evaluating each business case. Employers will be well advised to document the time and date that they receive each request as evidence that they have considered them in the correct order. Homeworking Given the popularity of homeworking as a flexible working arrangement, employers would be wise to deal with the practicalities of how this works in their policy, or a policy appended to it. This should address issues such as working hours and rest breaks, enhanced confidentiality precautions when homeworking and any monitoring of communications and systems.[BOX:] The eight lawful business reasons for rejecting a flexible working requesto The burden of additional costs.o An inability to reorganise work among existing staff.o An inability to recruit additional staff.o A detrimental impact on quality.o A detrimental impact on performance.o A detrimental effect on ability to meet customer demand.o Insufficient work for the periods the employee proposes to work. o A planned structural change to the business.
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