Changes imminent regarding the right to request flexible working

On 13 March 2014, the Children and Families Act 2014 (‘CFA 2014’) received Royal Assent. The Act contains important changes to the rules on flexible working, which will come into effect on 30 June 2014. The statutory procedure employers must currently follow in respect of flexible working requests will be replaced with a duty on employers to act reasonably in considering requests, and to do so within a reasonable time, and this will be complemented by a statutory Code of Practice.

Most notably, the new rules will extend the right to request flexible working to any employee with 26 weeks’ service, where previously only those with children under 17 and those with caring responsibilities were eligible. Employers should also note that a further change will be implemented on 1 October 2014, by virtue of the same Act. This will lead to fathers and partners being given the right to time off to attend a maximum of two antenatal appointments.

Key provisions

The Advisory, Conciliation and Arbitration Service (‘Acas’) has produced a final draft Code of Practice and the key provisions are fairly similar to the existing rules:

  • All requests must contain the date of the application, the changes sought and the date the applicant wishes the changes to take effect;
  • Requests must stipulate the likely effect on the employer, how the employer may deal with the request, details of any previous flexible working requests and a statement confirming that it is a statutory request;
  • Employers must make clear to employees the details that must be included in any request;
  • It remains the case that only one statutory request may be made in any 12 month period;
  • Employers must arrange discourse with the employee, who may now be accompanied to such meeting, as soon as possible following a request;
  • The benefits of any changes to working conditions must be weighed against the cost of applying the changes;
  • Requests must be considered on the presumption that they will be granted unless there is a business reason not to do so;
  • Decisions must be put in writing and, if the request is accepted, employers must discuss the implementation of changes with the employee; and
  • Should a decision be refused, employees are entitled to appeal and can be accompanied by a colleague to any appeal meeting.

It remains the case that the eight business reasons for rejecting a request which were laid out in section 80G(1)(b) of the Employment Rights Act 1996 remain in place, but all requests must now be dealt with within 3 months of receipt of the flexible working request.

Amendments to existing policies

Employers’ existing flexible working policies will require amendment. Reference to carers can be removed as policies merely need to stipulate that those employees with 26 weeks’ continuous service can submit a request. Furthermore, reference should be made to employees’ entitlement to be accompanied to any meeting to discuss their request and to the fact that a decision will be made regarding their request within 3 months of the date of the request.

Ultimately, existing procedures can remain albeit with adjustments. However, employers will need to consider how they may adapt to a possibly significant increase in flexible working requests and how it will affect their workplaces.