The public body ACAS has published its draft Code of Practice in advance of the 2014 right to request flexible working from carers to all eligible employees.
At the same time, Yahoo imposed a blanket-ban on home-working for all its employees. Home-working often forms part of a flexible working request. This move seems to reverse the direction of travel for most businesses and appears contrary to the Government’s intention behind next year’s legislation.
What does the Code say?
In previous articles we discussed the plans to extend the right to request flexible working to all employees (Flexible working to be extended to all employees) and detailed the strategic approach that organisations may now wish to consider. (Your strategic approach to flexible working)
The Government asked ACAS to produce a statutory Code of Practice (“Code”) to help businesses implement the new laws. ACAS has drafted their short (1.5 page) Code and asked for comments.
As was expected, the Code removes the current timeframe of 28 days in which employers must respond to flexible working requests. Instead, employers must talk to their employees ‘as soon as possible’ after receipt of the request. The entire process, including any appeals, should be completed with a 3 month period.
Although the eight reasons for rejection remain unchanged (see table in this link) employers will now be expected to start from the ‘presumption that you will grant them [the request] unless there is a business reason for not doing so.’
The Code states that employers should “weigh up the benefits of the changes in working conditions for the employee and the business against the costs of implementing them” but not discriminate against the employee when considering their request. This is not new law but the focus on costs could be seen to contradict previous case law. No further guidance is provided and employers remain unclear how to balance this delicate position.
Commentary
ACAS has explained that their Code is “principles-based”. At 1.5 pages it is certainly concise but it does not provide any real assistance to employers. It is hoped that ACAS’ non-statutory guidance, which will be published together with the final Code, will detail the processes that employers should follow and provide guidance on (i) the use of trial periods and (ii) how employers might manage competing requests whilst also seeking to avoid discrimination claims.
If employers act in breach of the Code they are not automatically exposed to legal proceedings but an employment tribunal will consider the breach in determining whether or not the primary legislation has been followed.
What did Yahoo say?
In a memo sent to all staff on 22 February 2013, Yahoo announced that from 1 June this year, all staff will be expected to report to work at a Yahoo office every day. Although Yahoo’s stated reason for the change in working practice was to boost speed and quality, saying that “Some of the best decisions and insights come from hallway and cafeteria discussions, meeting new people, and impromptu team meetings”, the reaction to this decision has been largely critical, being seen as ‘turning back the clock’.
Commentary
So how might the Yahoo example, or others like it, be judged in 2014, when the new flexible working legislation takes effect?
Yahoo and other employers will still need to rely upon a genuine business reason if they want to turn down a flexible working request or risk a claim for constructive dismissal and/or discrimination. In response to future home-working requests, Yahoo will need to provide cogent evidence to support their blanket ban and rely on one of the eight permitted reasons to reject any home-working request.
Yahoo’s new edict is seemingly anti-working parent at a time when women are being encouraged to balance work and family to climb up the corporate ladder. It could also be counter-productive as there is persuasive evidence to support the position that employees who manage their own working hours have increased productivity and reduced stress levels. Implementing a flexible/agile workforce has resulted in enormous costs savings for many organisations. Yahoo’s new world order may prove to be a very short-term solution.
Resources
For further information or to discuss the issues raised, please contact Emma Clark or David Widdowson on +44 (0)20 3051 5711.
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