02 July 2014

From 30 June this year the right to request flexible working will be extended to nearly all employees. Any employee with 26 weeks' continuous service will be able to make a request to work flexibly, regardless of whether they have any caring responsibilities for either children or adults. This will apply to all types of employees and not just in a traditional business environment; nannies, gardeners and domestic staff will be within the rules, as well as farm and estate workers.

In dealing with requests, employers will be required to demonstrate that they have complied with a proper procedure. The previous complex statutory procedure will no longer apply. Employers are instead advised to follow the ACAS Code of Practice (Advisory, Conciliation and Arbitration Service). Central to this process is the need for an employer to give reasonable consideration to a request and the whole process, including any appeal, must be completed within three months.

The right is only to make a request to work flexibly; the employer does not have to agree to this. However, an employer can only turn down a request where there is a good business reason for doing so. The ACAS code still includes the eight statutory grounds on which a request may be refused, which includes cost to the employer, the ability to meet customer demand and the impact on quality and performance that a flexible working arrangement may have.

If an employer agrees to a request, this will normally result in a permanent change to an employee's terms of employment, although the employer may be able to negotiate a change on a temporary or trial basis.

Case law has shown that if an employer refuses a request, they run the risk of claims for discrimination (in particular sex discrimination) and possibly constructive dismissal. It is, therefore, very important to follow a suitable process when considering requests and to be able to demonstrate good, objective business reasons for any decision to refuse the request.

This legal update was written by senior associate Huw Cooke. For more information please contact Nigel Popplewell.

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