The right for all employees to request flexible working came into force yesterday. Before 30 June 2014, the right only applied to parents of children under the age of 17 (or 18 if the child is disabled) and certain carers.

Given this significant development we thought it would be useful to revisit this area of law. Our specialist employment solicitor, Khurram Ahmad, breaks down what flexible working is and what the new changes mean to employees and employers.

What is flexible working?

In essence, flexible working means a variation of your working pattern such as part-time working, flexitime, job sharing, shift working and home working.

What are the new rights and how should employees make the request?

All employees can now request flexible working.

The employee must have worked for the same employer for at least 26 weeks to be eligible and only one request can be made in any 12-month period. The procedure to be followed will be far less prescriptive than that previously in force. The employee triggers the procedure by making a written request setting out the change that they are seeking, when they want it to start, and explain what affect, if any, they think the flexible working would have on their employer. The employer must then notify the employee of the decision within three months of the request being made.

Can my employer reject my request?

Your employer should consider your request objectively and “in a reasonable manner”. They should meet with you to discuss your request as soon as possible.

Your employer can only refuse your request on one or more of the following grounds:

1. The burden of additional costs;
2. Detrimental effect on ability to meet customer demand;
3. Inability to recruit additional staff;
4. Inability to reorganise work among existing staff;
5. Detrimental impact on quality;
6. Detrimental impact on performance;
7. Planned structural changes; or
8. Insufficiency of work during the periods the employee proposes to work.

What can I do if the employer rejects my request?

Your employer does not have to provide you with an appeal (although the ACAS guidance does say that it is ‘good practice’ for employers to do so).

You may be able to complain to an employment tribunal if your employer:

• Fails to deal with your application in a reasonable manner;
• Fails to notify you of the decision on your application within the 3 month ‘decision’ period;
• Fails to rely on one of the statutory grounds when refusing your application; or
• Bases its decision on incorrect facts.

BPS Comment

For employees, the change is long overdue – employees of all ages will now be able to ask their employer to alter the way they work, regardless of whether they have dependents or caring responsibilities. It may finally give them the flexibility that they need for example, to take time out to train, volunteer in a local community project, or simply avoid travelling at rush hour.

For employers, this change amounts to another administrative headache. Although it may not impact larger companies (as they have the resources to counter the effects of flexible working), we believe smaller business will be hit badly as managing competing requests could pose some tricky employee relations issues. Furthermore, with every employee able to request flexible working, the number of grievances may rise when employees’ requests are rejected. Discrimination and/or victimisation claims could also rise if employers only favour flexible working to dependents or those with caring responsibilities.

If you would like to discuss any of the issues raised in this article, please contact our employment law solicitor, Khurram Ahmad, on 0161 834 2623 or by email at khurram.ahmad@bpslaw.co.uk