The Government has announced its plans to extend the right to request flexible working to all employees from 2014.
Legal issues
This table sets out the current legal position and the changes to come into force in 2014.
Flexible working – the legal framework
| 2012 | 2014 | |
|---|---|---|
| Who can ask? | Carers with 26 weeks service | Anyone with 26 weeks service |
| How often? | Once every 12 months | Once every 12 months |
| What’s the process? | Stringent: 28 day time frame from request to meeting 14 days from meeting to decision |
‘Reasonable time frame’ Details to be provided in Code of practice with non statutory guidance notes |
| Reasons for rejection? | Costs Effect on customer demand Cannot re-organise work Effect on recruitment Effect on quality Effect on performance No work during proposed period Planned structural changes |
‘Reasonable manner’ plus 8 business grounds |
| Unanswered issues? | Trial period impractical as permanent change to contract Seen as a charter for working mothers with impact on career progression |
Trial period issue unresolved How to prioritise competing requests? |
Commentary
Although criticised by employers and employees alike for being unduly prescriptive, the existing procedure and time limits for responding to requests at least had the merit of being clear.
The introduction of a requirement to deal with requests in a “reasonable manner” will introduce some uncertainty which may result in more and not less litigation. The Government have said they will introduce guidance on this which may go some way towards providing a format understood by both employees and employers.
It remains unclear how employers will tackle trial periods and how they will manage competing requests.
Employers need to ensure they have policies and strategies in place to manage the new rules including how best to manage competing requests for flexible working from employees within the same team.
Any decision needs to be considered against sex and disability discrimination rights as well as the European parental leave directive that confers the right to request flexible working to parents returning from parental leave.
Resources
Government Response on flexible working
For further information or to discuss the issues raised, please contact Emma Clark, Kate Thompson, Guy Abbiss or David Widdowson on +44 (0)20 3051 5711.
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