Employment Law: Flexible working – what has changed?

Flexible working used to be limited to carers of children under 17 (or 18 if the child is disabled) and those caring for adult dependants. This has now changed so that any employee with more than 26 weeks’ service can request flexible working for any reason. 

So, if you’re an employer, how do you deal with statutory requests for flexible working under the new rules?

Three months to deal with a request for flexible working

Employers only have three months from the date of receipt to deal with a request for flexible working. Within this time limit you need to ensure that you:

  • Reasonably consider the request
  • Meet with the employee to discuss the request
  • Give your decision in writing (including any appeal process)

What this means is that if you are an employer, you need to act relatively fast following any request. Leaving your consideration and your response to the request to the last minute could have a bad effect on staff morale and could even lead to litigation!

Grounds for employers to reject flexible working requests

The employer may reject the request for eight reasons, and these remain unchanged from the previous legislation:

  1. A burden of additional costs
  2. Inability to reorganise work amongst existing staff
  3. Inability to recruit additional staff
  4. A detrimental impact on quality of the services/products etc
  5. A detrimental impact on performance
  6. A detrimental effect on ability to meet customer demand
  7. If there is insufficient work for the periods the employee proposes to work
  8. If there is a planned structural change to the business

Avoiding problems when rejecting flexible working requests

If a request for flexible time is rejected, then a claim may not be brought by the employee unless it is on the grounds of discrimination. However, even if rejection of a request does not lead to litigation, it could still impact on staff morale, so it’s important to handle requests fairly and communicate your decisions effectively to minimise the risk.

Prioritising requests

Now that many more employees are eligible, potentially a large number of your employees could decide to submit flexible working requests. If that happens, there are a range of ways you could manage the situation, but some are riskier than others!

The most important thing in avoiding litigation in dealing with any request for flexible working is that you must not discriminate unlawfully against an employee. You can reject a request, but your reason should be one of the eight business reasons set out above. If you are not sure about how to deal with a request for flexible working, it is wise to seek professional advice. This could be a better approach than facing litigation later on. Our Employment Advice Now packages for employers offer unlimited advice by phone and email for a monthly fee. If you are concerned about legal issues arising from flexible working requests and other HR matters, and don’t have your own in-house legal team, you may find this service helpful.

Our advice to dealing with this potentially tricky piece of legislation is to be open and honest with your employees. Advertise flexible working to your employees upon the first request of this right and then deal with all requests accordingly. This keeps up staff morale with a trustworthy, open and honest view to dealing with any requests with an aim to retain your best employees.