The “right to request flexible working” extends to all employees (with 26 weeks service) from 6th April 2014. Examples of flexible working are fewer days or hours, adjusted start or finish times, working from home and job sharing arrangements.
Requests can be refused
The important point to note is that the right is a “right to request”. It is not a right per se to work flexibly. The request has to be made in a prescribed manner and the employer has the right to refuse the request for a variety of business reasons.
These include the burden of additional costs, the inability to reorganise work among existing staff, and a number of other reasons relating to performance, quality and the ability to meet “customer” demands on the business. Where their reasons are valid, care sector employers should be able to rely on one or more of these options.
Responsibilities placed on employee
The prescribed manner for the employee includes recognising the effects a change may have on the employer and suggesting how these effects could be dealt with. Our experience, perhaps not universal, is that once an employee has to explain to an employer how he or she expects the employer to deal with the change requested then the request tends to disappear.
Changes are not temporary
It is also worth employees (and employers) understanding that the request for flexible working is in fact a request to vary the employment contract. Once an employer has agreed to a request then the change in contract becomes permanent (or at least indefinite). The employee cannot chop and change at will and can only make one request in any twelve month period.
Less onerous processes
Furthermore from 30th June, the prescriptive processes, that an employer has to follow currently, will be replaced by “duty to consider…in reasonable manner”. ACAS have produced guidance as to how employers should go about considering matters in a “reasonable manner”; it seems that employers cannot be trusted to know how to do this.
Easier resolution of conflict
Finally strong emphasis is being placed on mediation or arbitration for disputes, rather than relying on Employment Tribunal claims. As a deposit is now required for the latter, employers can be more and more confident that disputes over this matter are not likely to reach the courts.
Malcolm Martin of Employer Solutions – QCS Expert Human Resources Contributor
