From 30th June 2014, all employees will have the right to apply to work flexibly. To be eligible, employees will need at least 26 weeks’ continuous employment with their employer to make a request  Up until now, it has only been available to those who have children under 17 (or 18 if they have a disability) or who care for an adult dependant.

So how do the new rules work? First, and foremost, it needs to be understood what flexible working actually means.

What is flexible working?

Flexible working could mean working from home, part time working, flexitime, job sharing or shift working. Most employers already offer some of their staff a form of flexible working, especially part time work.

What is the right?

The new law gives all employees a new right to make a “request” to their employer to work flexibly. This does not, however, mean a “right” to work flexibly- it is a request, which is an important distinction.

How do you make the request?

If you want to make a request, there is a set process. You must to do in writing setting out:

• the date of the application, the change to working conditions you are seeking, and when you would like the change to come into effect.
• what effect you think the requested change would have on your employer and how, in your opinion, any such effect might be dealt with.
• that this is a “statutory request”, and whether you have made a previous application for flexible working, and if so, the date of that application.

How must an employer deal with your request?

Your employer is required to consider your request objectively, and in a “reasonable manner”. What amounts to “reasonable” is not set out in the legislation, but ACAS has produced a guide and employers could come unstuck if they do not follow it.

Essentially, your employer must notify you within 3 months of the request being made as to whether your application to work flexibly has been successful. Your employer should also consider and communicate your request in good time, and provide clear business reasons if the request is rejected.

What are the business reasons for the rejection?

There are 8 such reasons that an employer can give which include:

• the burden of additional costs;
• whether there is a detrimental impact on performance;
• an inability to meet customer demand;
• an inability to reorganise work;
• difficulties in recruiting new staff.

Is an employer’s rejection final, or can it be challenged?

Although ACAS say it is good practice to have an appeals process, there is no obligation on an employer to do so.

If a request is approved, does it represent a permanent change to your terms and conditions?

Yes, it will represent a permanent change with no right to return to the original terms in the future, unless otherwise agreed.

Are the new flexible working rights a good thing?

Yes, in theory, and the government certainly thinks so, but there are pros and cons:-

Pros

• Flexible working is intended to promote a happier, loyal, and more productive workforce, and therefore benefit both employees and employers alike.
• It shows that a company is progressive and listening to the needs of its staff.
• There is a cost saving to employers, who may be able to save office rental and ancillary expenses with more employees working at home. “Hot-desking “ is usually also more economical.
•  Employees can save on commuting time and costs.
• It enables an employer to handle more business outside normal office hours.
• A more diverse workforce is possible.
• Modern technology means remote working is far more achievable now than ever before.
• Employer may be able to avoid redundancies.
• Flexible working is a perk that could entice talented job-seekers to apply to an employer.

Cons

• Employers may have difficulty dealing with competing requests to work flexibly. ACAS has suggested employers may wish to “put names in a hat”.
• Employers could lay themselves open to discrimination claims if they only agree flexible working requests for parents and carers, or vice versa. They will need to make “value judgments” that are not limited to the personal reasons behind the request.
•  There could be resentment amongst staff who have had their requests denied, whilst others have been accepted.
•  Employers may feel a lack of control and/or awareness of the work being carried out in a flexible basis.
• A lack of contact with colleagues at the office could limit the cohesiveness of teams and exchange of ideas.
• There may be communication breakdowns if it is difficult to get hold of staff, which may impact on the co-ordination of   projects/meetings/phone calls.

With an ageing workforce in the UK, flexible working may be the perfect way to retain older and productive staff who are looking to break away from the standard 9-5 routine. It will also attract the younger generation who embrace technology and are much happier to use it in a more flexible working environment. Arguably, however, smaller employers simply won’t have the resources to be as accommodating to flexible working as their larger counterparts.

Whether employers are in general prepared to embrace flexible working in a big way remains to be seen.

By employment lawyer, Philip Landau

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