Will the new Flexible Working regulations have more teeth than its predecessor?

It doesn’t look like it.  Why?  When considering a request to work flexibly under the new Flexible Working Regulations (FWR) (which will apply from 30 June 2014), a tribunal still won’t be able to question the commercial rationale or business reasons for an employer turning down a flexible working request or whether in its opinion a request should have been allowed. The financial penalty for breach of the FWRs will still be only 8 weeks capped pay.    

So what are the changes to the FWRs that are coming? From a procedural point of view they are sizeable.  The FWRs will give the right to request flexible working to all employees (not just those employees with certain childcare and adult responsibilities) for any reason. The new FWRs are likely to cover all possible work patterns including a change from part-time to full-time. 

Gone are the rigid timescales for employers to comply with specific steps.  Employers:

• must consider requests for changes to:
  • Hours worked and/or
  • Times when an employee works and/or
  • Places where an employee works
• must consider, discuss and accept/reject any FWR request in a three month window (it starts when the FWR request is received) but it can be extended by agreement with the employee
• must deal with any application in a ‘reasonable manner' (employment lawyers love the term ‘reasonable’; there’s bound to be some sort of bun fight on this point) and
• can consider an FWR request withdrawn if an employee fails (without good reason) to attend either two meetings to discuss the FWR request or two appeal meetings although care should be taken when considering this option.

What hasn’t changed?

• Only one FWR application can be made in any 12 month period
• The application can only be rejected on one or more of eight grounds (they’re the same as they are at the moment)
• Employees must still have 26 weeks’ continuous service.

What is a ‘reasonable manner’?

There is no statutory definition of ‘reasonable manner’. An Employer’s best source of reference is the ACAS Statutory Code of Practice (the Code). The Code is not statutory but is essential reading for no other reason than Tribunals are guided by them.

The Code suggests that:

• Employers should meet (in a private place) as soon as possible with the employee after receiving the FWR request to discuss the request
• Employees should be given the right to be accompanied (even though there is no legal right to be accompanied from 30 June 2014) at discussion and appeal meetings
• Inform the employee of the employer’s decision within the ‘decision period’ which is:
  • Three months beginning on the day the FWR request is made; or
  • any longer period if the employer and the employee agree
• An agreement to extend the ‘decision period’ can be made retrospectively within the three months starting from the day after the day when the original three month decision period ended
• FWR request outcomes should be confirmed in writing as soon as possible
• If requests are accepted in part or in full, meet with the employee to discuss how the changes will be implemented
• When rejecting an FWR request, a reason should be given to the employee. Interestingly, the FWRs themselves don’t require a reason other than stating one or more of the eight statutory reasons apply and
• Allow an employee to appeal any decision to reject their FWR request.  Bizarrely, there’s nothing in the FWR about appeals. Appeals can be significant especially if they correct an employer’s previous errors.

The final ACAS Statutory Code of Practice on the new procedures is not out yet.  The current draft code is here.

What are the implications for you and your business?

The changes may all be a storm in a teacup and pass under the radar without too much fuss. Our view is that most employers won’t see too great an increase in flexible working requests from 30 June 2014. We could be wrong. You do need to be aware therefore that all employees will have the right to put in an FWR request from this date and that the procedure has changed. 

The new FWRs themselves may not have many teeth but discrimination laws certainly do. Beware of linked discrimination claims. Discrimination claims are normally brought by employees at the same time as claims for breach of the FWRs. This is because compensation is potentially unlimited for successful discrimination claims and employees know they are normally harder and costlier for employers to defend. 

Traditionally, linked discrimination claims have largely been sex discrimination claims from female staff looking to change their hours to fit in with childcare.  Because all staff will be able to make FWR requests for any reason, employers need to consider whether, when they get an FWR request, they have an obligation under other less obvious heads of discrimination. For example, is a request to allow an employee to change their hours to attend regular medical appointments caught by the Disability Discrimination Act? Is a request to change hours to allow an employee to attend church a religious belief? They may.

What do you need to do?

You need to:

• Have a clear, non-contractual internal procedure in place for continuing to deal with FWR requests from 30 June 2014. As long as your current procedure fits the new FWR requirements, you may decide to keep it as it is. If you don’t have one, consider putting one in place.
• Question the background to any request for flexible working during your decision making process; there may well be a hidden reason for a request which is a protected characteristic under discrimination law.
• Notify managers/team leaders that flexible working requests can now be made by all employees and that the procedures have changed.
• Consider whether a trial period is sensible, especially where an employer is not sure if the contract variation will work. There’s no legal right to a trial period but if it doesn’t work (and you need to revert back to the old working pattern) the unsuccessful trial period may help defend a claim if the matter gets to Tribunal.
• If a FWR request is successful, remember to issue a ‘section 4 statement’ to the employee confirming the changes to their terms and conditions. 
• Even if an FWR request does not proceed, because it does not have the right information in the request itself or the employee is not eligible to make a request, don’t simply bin it. Look behind to reasons for the request to see if there is a serious reason for the request which an employer should consider outside of the FWRs. I’m thinking of costly discrimination claims.
• Consider FWR from men just as seriously as from women. Think possible direct discrimination claims if a women’s claim is treated more seriously than a man’s.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.