The Government has announced that the extension of the right for employees to request to work flexibly, which was due to be introduced on 6 April this year, has now been postponed. The Children and Families Bill, which contains the right for all employees with 26 weeks’ continuous service to ask their employer to accommodate their flexible working requirements, will not now receive Royal Assent until at least 21 March 2014. This means that implementation of these changes is not expected until later this year.
In the interim, ACAS recently published the final draft of the statutory code after a constructive consultation process. Although technically this code is subject to government approval, it is now unlikely to change, providing employers with insight as to their future legal responsibilities. Accompanying the draft code is ACAS’ good practice guide: a helpful starting point for employers as they consider how to implement these changes into their existing flexible working policies. Recent CIPD research suggests that 63% of workplaces already allow all employees to request flexible working.
The legislation will introduce important statutory obligations of which all employers should be aware. As well as the widening of the statutory right (to any employee with 26 weeks’ service who has not made a statutory request in the last 12 months), there will be less prescription in the way flexible working requests must be processed. The duty on employers will now be to handle requests in a “reasonable manner” and the burden of statutory timeframes for processing the request will, to some extent, be removed. In the coverage so far, much has been made of this apparent relaxation of timeframes, but employers should be aware that there will remain a statutory duty to deal with the whole request process (including any appeal) within 3 months, unless otherwise agreed with the employee. It may be, therefore, that employers choose not to alter their current timeframes for responding, as set out within their existing policies.
The most significant tweak to the code since the consultation has been the removal of the explicit presumption that requests will be granted by employers. Responses suggested that this might give employees false hope, which could be damaging to the employment relationship. Although employers must weigh the benefits (to both employer and employee) of granting requests against any adverse business impact, (ie not just the cost), the law remains that employees have no explicit right to work flexibly. Even so, employers must still provide one of the existing business reasons for refusing a request.
The good practice guide has some useful advice on how to develop a workable policy and how to deal with multiple requests concurrently. It is perhaps rather light, however, on the interaction between flexible working requests and discrimination legislation. In considering the business reasons for refusing any request, employers should be careful not inadvertently to discriminate against an employee by not complying with the employer’s duty to make reasonable adjustments, for example where the employee has childcare responsibilities or a disability. On this basis employers may wish to consider a policy that accommodates employees who may be excluded from the statutory regime (because they have less than 26 weeks’ service or made a flexible working request in the last year), for instance by providing an adjacent informal procedure for flexible working requests not made under the statutory procedure. Likewise, when granting requests, employers should ensure that they do not fall foul of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, by treating part-time workers less favourably than full-time workers in their contractual terms and conditions (unless justified on objective grounds).
So, whilst employers should continue to follow the existing statutory procedure for dealing with flexible working requests until the new proposals become law, it would be advisable to use the delay in implementation to ensure updated policies are ready to be rolled out when the time comes.
With thanks to Charles Fursdon, Trainee at Farrer & Co, for contributing to this article.