The amendments to the Flexible Working Regulations were heard before Parliament yesterday and are due to take effect on 30th June 2014.
The amendments to the Regulations now allow any employee that has been continuously employed for 26 weeks to submit a request to their employer for flexible working. Previously, only parents of children aged under 17 (or aged under 18 in the case of a disabled child) and certain carers were permitted to make a flexible working request.
The basic procedure that must be followed has remained unchanged:- (i) the employee has the right to make one flexible working request, in writing, per year; (ii) the employer must respond to the request within a three month timeframe; and (iii) the request can only be refused by the employer on any of the following business grounds (as provided for by the Regulations):-
- the employer will incur additional costs as a result of the request that will harm the business
- the business will not be able to meet customer demand
- the employer will be unable to redistribute the work among other members of staff
- additional staff cannot be recruited to do the work
- quality and performance levels will be adversely impacted
- there will be a lack of work for the employee to do during working times proposed in their request
- the employer is planning to implement structural changes to the workforce
In normal circumstances, a Tribunal will only investigate whether the employer has followed the correct procedure in considering a Flexible Working Request, rather than the merits of the request itself. If an employer is found to have failed to follow the correct procedure, the maximum compensation that can be awarded to the employee is 8 weeks’ pay (up to the statutory cap, currently £464 per week). There can be no order by the Tribunal, for example, that an employer must agree to the request that is the subject of the action. Claims relating solely to breaches of the Regulations are therefore relatively rare.
However, employers should be alive to the possibility of discrimination claims, such as indirect sex discrimination, arising out of Flexible Working requests that have been refused, as these are more commonly made and are not subject to the 8 weeks’ pay cap. This highlights the need not to rely only on the business grounds in name, but for an employer to be able to justify the application of these grounds to the refusal. This becomes even more important given the extension of the right to request increases the scope of potential discrimination claims.
As such, it is important for employers to review the wording of their Flexible Working Policy ahead of the amendments coming into force to ensure compliance. Staff training should also be carried out where necessary, particularly at the decision maker level.
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