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Employees now have the right to request flexible working. What does this mean for small businesses?

There have been changes to the right to flexible working from 30 June 2014. The changes are hard to miss with both politicians and business communities publically voicing their opinions; however, what has changed and how does it affect you?

Every employee will have the right to request flexible working provided they have been employed for 26 weeks (though some employers may allow employees to make a request even before 26 weeks have elapsed). Before the change this right was only available to parents and certain carers. The rules of making a request are similar to before the change and state:

  • requests should be in writing stating the date of the request and whether any previous application has been made and the date of that application
  • requests and appeals must be considered and decided upon within three months of the receipt of the request
  • employers must have a sound business reason for rejecting any request
  • employees can only make one request in any 12 month period.

When an employee makes a request they must consider the change to working conditions and how this may affect the business. For example, there may be a cost saving to the business, the request should therefore be as balanced as possible anticipating benefits and costs and providing possible solutions. It must also be clearly highlighted in any request if it is made in relation to the Equality Act 2010.

Once a request is made, the Advisory, Conciliation and Arbitration Service (ACAS) recommends under ‘good practice’ to set up a meeting to discuss the request. This meeting can be used by the employee to represent the flexible working request and work out any compromises if necessary. An employee can request a colleague or a trade union representative to accompany them, though this is not mandatory.

Acceptance of a request is seen as a change to the employment contract and in most circumstances a meeting will be unnecessary. From an employer’s perspective due consideration should be given to any reasonable request and they can only refuse them on:

  • the burden of additional costs
  • an inability to reorganise work amongst existing staff
  • an inability to recruit additional staff
  • a detrimental impact on quality
  • a detrimental impact on performance
  • detrimental effect on ability to meet customer demand
  • insufficient work for the periods the employee proposes to work
  • a planned structural changes to the business.

Where following meetings and discussions a dispute exists the next steps should be:

  • use of the employer’s internal grievance procedures
  • seeking assistance from a third party such as a trade union representative
  • seeking assistance from ACAS through the conciliation process.

If that does not resolve the issue then the legal system is available with the first stage being an application to the employment tribunal. ACAS has guidance on this matter and you may find the following useful as an employee or an employer.

The right to request flexible working: An ACAS guide (from 30 June 2014)

Code of Practice on handling in a reasonable manner requests to work flexibly

Working from home guidance

ACCA has also produced a comprehensive suite of employment law factsheets (numbers 147-157).

Article contributed by ACCA