How Flexible are you?

July 4, 2014

Prepare for Flexible Working in NI

Changes in England and Wales extending the right to request flexible working are now in place after the Children and Families Act 2014 was given Royal Assent in Parliament in March.

At present, in Northern Ireland the right to flexible working hours can only be availed of by employees with children under 17, those with disabled children under 18 and those who act as a carer.

From 30 June 2014 any employee in England or Wales is now able to make an application to work flexibly for any reason provided they have 26 weeks’ continuous service and have not made a flexible working request in the past 12 months. This is a notable change as now all employees who have the necessary period of service will have a right to request flexible working regardless of caring responsibilities. The statutory procedure for consideration of flexible working requests has previously been deemed overly onerous and strict. This procedure has been replaced with a duty on employers to deal with requests in a ‘reasonable’ manner. Whilst this change is beneficial to employers as it removes an administrative task, it does nevertheless introduce some uncertainty to the decisionmaking process. In practical terms, it may be difficult to decipher what can be regarded as a ‘reasonable manner’. Indeed the interpretation of ‘reasonable’ may vary form employer to employer and it is likely that further guidance will be needed on this point.

With this in mind, the government has provided guidance on how the concept of ‘reasonable’ should be interpreted. A draft Code of Practice (the Code) and supplementary guidance (the Guidance) on handling requests to work flexibly has been published by ACAS. The Code will have statutory grounding and will be taken into account by employment tribunals when considering relevant cases.

The Code sets out the procedure that should be followed by an employer in the event of receiving a request. When an employer receives the request he should arrange to discuss it with the employee as soon as possible. The Employee should be given the option to be accompanied at a discussion by a work colleague or a trade union representative. It is vital the employer considers the request objectively, considering both the benefits to and needs of the employee in the context of the demands of the business. If the request is ultimately approved, the parties should consider the logistics and timeframe as to when the changes will be instigated.

Changes introduced by new legislation

The legislation greatly strengthens the position of an employee making a flexible working hours request in England & Wales. A key change is the limited circumstances in which an employer can discard a flexible working request. An employer can only reject a request where it would bring or lead to:

• additional costs;
• an effect on the ability to meet customer demand;
• inability to reorganise work among existing staff;
• inability to recruit new staff;
• a detrimental impact on quality;
• a detrimental impact on performance;
• insufficiency of work during period of work proposed by the employee; or
• planned structural changes.
• It also states that all requests, including any appeals, must be considered and decided on within a period of three months from first receipt, unless an extension is agreed. The request can be
treated as withdrawn if the employee, without good reason, fails to attend two consecutive meetings to discuss the request or an appeal.

Should an employer refuse a request based on one of the above reasons, he/she must give a reasoned explanation to the employee.

It is important to flag up to the reader that whilst the new legislation gives employees the right to request flexible working in terms of adjustments to working hours and locations, it does not give employees the right to work flexibly, a subtle but significant distinction. Requests for flexible working incorporates many aspects of employment contracts including job sharing, working from home, part time working and flexitime.

What will happen in Northern Ireland?

The Work and Families Bill 2014 is currently being considered by the NI Assembly. The Bill aims to make provision for shared rights to leave from work and statutory pay in connection with caring for children, time off work to accompany to ante-natal appointments or to attend adoption appointments, and to make provision about the right to request flexible working. The Bill is expected to come into force in early 2015 and currently facilitates extension of the current right to request flexible working to all employees having an appropriate length of service with their employer (currently 26 weeks). The Bill, however, unlike in England & Wales, does not remove the statutory basis for considering such requests. Employers will therefore continue to approach requests having regard to whether the business can accommodate a request. Employees, as now, will need to set out persuasively how their request can work for the business. It is anticipated revised guidance will be provided to address the changes.

Employers should be mindful of the timescale for implementation and look at their policies with a view to revising where necessary. It may also be necessary for employers to consider providing additional training in accordance with the new provisions.

Please note: The content of this article is for information purposes only and further advice should be sought from a professional advisor before any action is taken.