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"Sophisticated management" of flexible working requests by employers key to success of reforms, says expert

The ability of UK employers to successfully manage flexible working requests following the extension of the right to all employees with over 26 weeks' service will be fundamental to the success of the new regime, an expert has said.01 Jul 2014

Selwyn Blyth of Pinsent Masons, the law firm behind Out-Law.com, said that by developing principles-based criteria, in consultation with employees or their representatives, firms would find it easier to make decisions when they received competing requests from employees.

"Some employees could consider that their employer saying 'yes' to a flexible working request sets a precedent for future requests, when in fact every acceptance changes the circumstances in which the next request is received," he said.

"By developing principles-based criteria, based on the eight prescribed business reasons for which these requests can be reasonably refused, firms will be able to more efficiently manage the expectations of their workforce. This will also give the employer an opportunity to publicise the fact that they will not be able to grant every request," he said.

Previously, the right to request flexible working was only available to parents with children aged under 17 and certain carers. As of 30 June, this has been extended to any employee with more than 26 weeks of service. Eligible employees now have the right to request a change to working hours, working time or working location once every 12 months. This request must be in writing and include certain information specified by the Employment Rights Act (ERA), such as the nature of the change and the effect that it would have on the business.

The new regulations do not automatically give employees the right to work flexibly, as employers will still be able to reject a request on the basis of one or more of the permitted reasons set out in the ERA. These include the burden of additional costs, effect on ability of the business to meet customer demand and inability to reorganise work among other staff. The statutory procedure for considering flexible working requests has been replaced by a new duty to deal with the request in a "reasonable manner", and employers will be required to notify the employee of the decision within three months.

The government has estimated that around 182,000 employees will request to work flexibly per year, with 81,000 of these requests coming from people who did not previously have a right of request. Of these, 144,000 would likely be granted, it said. It said that the new right would be of particular benefit to older workers who want to work differently as they approach retirement, and to young people entering the labour market who want to take up additional training while they work.

Acas, the publicly-funded conciliation service, has published a new code of practice to coincide with the extension of the right. Acas chair Brendan Barker said that the document would "help employers handle flexible working requests in a reasonable manner and fit their specific circumstances and procedures".

"Our experience from working with thousands of employers is that flexible working is both good for business and employees," he said.

Employment law expert Selwyn Blyth said that a number of businesses had already implemented a broader right to request flexible working ahead of the changes coming into force. Although he said that many of these requests were "anecdotally" continuing to come from women with caring responsibilities, it remained to be seen how this would change as part of the bigger shift towards more gender neutral flexible working that will also include a new system of shared parental leave from next year.

"It is one thing to open up the right to request a more flexible working pattern, but quite another to change underlying attitudes," he said. "Specifically in relation to flexible working, employees could be put off from making a request due to the cut in wages that would come as a result of working fewer hours."

"However, the type of 'flexible working' governed by the new right is not limited to part time work. I suspect that we could ultimately see an increase in more innovative arrangements such as compressed hours and home working - particularly given IT developments that now make it easier for people to work from home without much disruption," he said.

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