As readers will know from our previous ebulletins, the right to request flexible working is being extended to all employees (not just carers or parents) from 30 June 2014, provided the requesting employee meets certain eligibility criteria.

The eligibility criteria are that the individual making the request must be an employee, they must have at least 26 weeks’ continuous service, and they cannot have made a flexible working request in the previous 12 month period.

In addition to the new right, the current statutory procedure for requesting flexible working is to be scrapped. To replace this, there will be an Acas Code of Practice put in place which employers will be expected to follow. The Code of Practice has quite a long name – Handling requests to work flexibly in a reasonable manner – and can be found here. You will be pleased to see that the Code is only 2 pages long! This final draft is not yet approved by Government, but it is expected to be very soon.

The Code sets out a procedure that is far less burdensome than the previous statutory procedure. The employee triggers the procedure by making a written request to their employer. An employer then has 3 months to consider the request, discuss it with the employee (if appropriate), notify the employee of the outcome and deal with any appeal by the employee about the outcome. The 3 month period can be extended by agreement with the employee.

An employer can still only refuse a request for one (or more) of the eight reasons set out in the legislation, which are as follows:

• the burden of additional costs;
• detrimental effect on ability to meet customer demand;
• inability to reorganise work among existing staff;
• inability to recruit additional staff;
• detrimental impact on quality;
• detrimental impact on performance;
• insufficiency of work during the periods the employee proposes to work; or
• planned structural changes.

The Code suggests that employers should allow an employee to be accompanied by a colleague or trade union representative at any meetings to discuss the request, which does seem reasonable.

Although potentially more flexible working requests may be made, we do hope to see the process of dealing with flexible working requests becoming less of a chore for employers. Hooray! It would be a good idea to revise your flexible working policies to reflect the Code – do let us know if we can help with this.

We can help with flexible working policies and advising on how to handle requests. Please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.