I’ve blogged previously about flexible working and the employers of the future being the ones who embrace flexible working http://www.refreshinglawltd.co.uk/?p=258. But what if you just want to understand how the law is changing and what you are legally bound to do?
There are two key aspects to the changes. The first is who can make a request for flexible working. The new regulations extend the right to make a request for flexible working to any employee who has been employed for 26 weeks (not just parents of children under 17, or 18 if disabled, and certain carers – as was previously the case).
Now lots of employers have always said in their flexible working requests that they will accept applications from all employees so for those there will be no change. For the other employers for whom this is new territory there is understandably some concern that they will face more requests and might face difficulty juggling the requests. It may be easy to make changes and accommodate a handful of people but if everyone starts asking for changes how do you rank competing interests? Whilst employers will have to deal with each request on a case by case basis, an eye will need to be kept on the wider picture to ensure fairness across the board.
The second limb to the changes is the process the employer has to follow. The basic right to request is unchanged. Employees can still only make one written request per year. Instead of being wedded to a tighter timetable the the employer needs to deal with it within three months, and can refuse on any of the same eight (very wide) business grounds that have applied since the right initially emerged. So if you cannot accommodate the request for good business reasons like the impact it will have on customers, you don’t need to agree to it.
A tribunal cannot normally investigate the rights and wrongs of the refusal, only whether the procedure has been properly followed. Maximum compensation for a failure to comply is eight weeks’ pay (currently capped at £464 per week) so a maximum of £3712. Claims in this regard are actually fairly rare.
What has always been more troubling for employers is discrimination complaints that might emerge. For example, if the reason why an employee wants to make changes is their health, the duty to make reasonable adjustments to accommodate a disability under the Equality Act may apply. Equally a male, making the request for caring/childcare reasons and turned down may complain of direct sex discrimination if he can point to a female comparator who has been allowed flexbile working. Women may argue indirect sex discrimination, citing the employers normal working patterns as having a detrimental impact on them as carers, working on the basis that tribunals will still accept that more women than men take on this role in society. The employer is then forced to objectively justify their working patterns and explain why it is impossible to allow the woman to work the working pattern she desires. Those tensions will continue and it is critical to consider all the issues ‘in the round’ rather than looking at the flexible working regulations on their own.