UPDATE: Flexible Working
With effect from 30 June 2014, the law on the right to request flexible working has changed.
In summary, prior to 30 June, an employee who had been continuously employed for 26 weeks could apply in writing to his or her employer to request a change in hours, time or location of work for the purpose of enabling the employee to care for a child under the age of 17; or a disabled child under 18; or certain categories of adult (spouse, civil partner, partner, relative or an adult that lives at the same address as the employee).
In respect of applications to enable the employee to care for a child, the employee could make the application if he or she was the mother, father adopter, guardian or foster parent and expected to have responsibility for the child’s upbringing.
The application had to be considered using a prescribed process within prescribed time limits. This involved a meeting to discuss the request within 28 days of the application, notification of the decision on the application within 14 days of the meeting, and a right of appeal. The application could only be refused on prescribed grounds.
Since 30 June 2014, the rules have been extended and relaxed.
It is still the case that a statutory request for flexible working can only be made by an employee with at least 26 weeks continuous employment at the date the request is made. Only one request can be made in any 12 month period. Agency workers and employee shareholders are not permitted to apply. Requests must be in writing and contain prescribed information.
An eligible employee can still request a change in their employment terms relating to hours of work, the times when they are required to work and their place of work. The change can be permanent or temporary.
The main differences that took effect on 30 June are:
- That the employee no longer has to provide a reason for making the request. It can be made by any employee, not just those with caring responsibilities.
- An employer is now entitled to notify an employee that it is treating the request as having been withdrawn where the employee has failed to attend 2 meetings arranged by the employer to discuss the request or the employee has failed to attend 2 appeal meetings arranged by the employer to discuss any appeal, and in either case, the failure to attend is “without good reason”.
- There is no longer a prescribed process for dealing with the request. It must be dealt with in a reasonable manner and a decision on the application and on any appeal against the decision must be made within 3 months from the date on which the employee’s request is made, or such longer period as the parties may agree.
It is still the case that a request can only be rejected on prescribed grounds.
Employees are entitled to complain to an employment tribunal if the employer (i) fails to deal with the application in a reasonable manner; or (ii) fails to notify the employee of a decision within 3 months of the date of the application; or (iii) does not provide a statutory reason for refusal of the request; or (iv) bases its decision on incorrect facts; or (v) treats an application as withdrawn when it was not entitled to do so.
A tribunal is required to take the provisions of the ACAS Code into account where this appears relevant.
For further information on the issues raised in this article, please contact Helen Wyatt on 020 7925 8083 or by email at email@example.com.