Employment Article Sep 2014

Can your Business Bend to the New Flexible Working Rules?

Aug 27, 2014

On 30 June 2014, new laws were introduced to extend employees’ rights regarding flexible working. The Government’s aim was to depart from the concept that flexible working should only be a benefit to parents or carers. How this new arrangement will work in reality will remain to be seen.

The Old Law

Prior to 30 June 2014, the right to request flexible working was limited to employees with over 26 weeks’ service, who were carers of children under 17 years old (18 if disabled) or adult dependants.

Once employers received a request, they were bound by a rigid statutory process and time frame to deal with the request, and were tied to 8 business reasons to reject it. Failure to comply with this procedure could have resulted in a claim under the flexible working legislation.

The New Law

The right to make flexible working requests has now been extended to all employees with 26 weeks’ service, regardless of whether the employee is a parent or carer. It remains the case, however, that employees only have a right to request, not an automatic right to work flexibly. Employers can therefore reject such applications on sound business grounds.

The statutory procedure for dealing with requests has also been replaced with a more relaxed system, where employers are simply obliged to deal with the requests in a ‘reasonable manner’. The only time frame binding employers is a 3 month period during which the request, and any subsequent appeal, must be dealt with.

Potential Problems

The duty to deal with requests in a ‘reasonable manner’ could be advantageous to smaller employers, as they could potentially use the argument that a limited workforce makes it too difficult to grant employees flexible working. However, this could also cause more challenges and increased litigation for employers due to the uncertainty of what a ’reasonable manner’ constitutes. The Government has indicated that guidance will be provided for employers and employees, but at present ambiguity remains.

Issues may also arise when employees make opposing requests. The Government’s intention is to circumvent a hierarchy where parents or carers primarily continue to reap the benefit of this right, or be given priority. However, realistically, given the prospect of discrimination claims, an employer is likely to give more consideration to a request from a mother or carer of a disabled dependant, over a request from an employee who simply wants to work flexibly to allow them to pursue outside hobbies and interests, for example.

Going forward, employers will have to focus on implementing the new flexible working arrangements and integrating these into internal policies, and consider how to manage and resolve any issues that may arise.

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