The statuary right to request flexible working was significantly extended on 30th Jun 2014. However, research by Sage UK has shown that 10 per cent of small businesses are completely unaware of this new regulation, while a third are still not complying with the changes.
The right to request flexible working was available only to parents with children under 17 – or under 18 if the children were disabled, and those with caring responsibilities for adults. However with the recent changes, the right to request flexible working applies to all employees, on the basis that they have at least 26 weeks continuous service and have not made another request within the previous 12 months.
Sage UK’s survey of 400 business owners revealed 30 per cent believed that meaningful flexible working policies would help enhance employee productivity, and it has been suggested that flexible working boosts morale.
Although the eight statuary grounds for refusing flexible working requests remain the same as before changes were implemented, the decision to grant a request is arguably a subjective one, with the statute declaring that the employer only has to consider that one of the grounds for refusal applies for the test to be satisfied. However, a refusal may generate a discrimination claim or even one of constructive unfair dismissal if the request is handled badly or rejected without proper consideration. Consequently, employers who are considering a statuary request for flexible working may find the following suggestions helpful. They should be:
– Open minded: Avoid the preconception that application made by virtue of the new rules coming into effect have less merit than those made under the old rules.
– Remember precedents: It can often be overlooked that a colleague may presently have a similar flexible working arrangement to one that has been requested by another employee. If employers are considering rejecting a request similar to one that was recently accepted for another member of staff, they should be very clear on their reasons – this is a classic area where discrimination claims can arise
– Willing to negotiate: If a proposed change is unacceptable, employers should consider using it as a starting point for a negotiation towards a mutually agreeable outcome. This may be achieved by considering other options or agreeing to a trial period and observing the outcome.
The new flexible working rules may offer more employees the right to request flexible working, but they also remove the burden of a rigid procedure for employers to follow. One of the government’s core aims in providing this increased flexibility was to allow meaningful discussions to take place about finding a compromise. Businesses should adopt this approach where reasonably practicable to maintain a well-motivated workforce and to minimise the risk of claims.