The right to request flexible working will extend to all employees who have been employed for 26 weeks from 30 June.

The right was initially introduced for parents with children under 6 or those with disabled children in 2003. Over the years the qualifying conditions have widened. From 30 June the eligibility criteria is broadened to all employees with 26 weeks employment.

To make a request an employee must apply in writing, specifying the date of the application, stating that the application is made under the statutory procedure, the change that they seek when they want it to apply, the effect they think it may have on the employer and how that could be dealt with and whether they have applied before and if so, when.

The employer must deal with the request in a reasonable manner,
notify the employee of its decision within the decision period (usually three months) and only refuse a request if there are grounds to do so.

The grounds on which a request may be refused are the burden of additional costs, a detrimental effect on ability to meet customer demand, inability to reorganise work among existing staff, inability to recruit additional staff, detrimental impact on quality, detrimental impact on performance, insufficiency of work during the periods the employee proposes to work or planned structural changes.

There is a new ACAS Code of Practice on Handling Requests to work flexibly in a reasonable manner and a Guide for Employers.

Remedies for breach remain much the same. An employee may bring a claim on the basis that their employer did not deal with their application in a reasonable manner, did not notify them of the decision on their application within the decision period, rejected the application for a reason other than one of the statutory grounds, made the decision to reject the application based on incorrect facts or wrongly treated the application as withdrawn.

In such cases the employment tribunal will review the procedure and decision making process followed by the employer. What they will not do is question the employer’s commercial decision making or substitute their own view of the situation for that of the employer. It is also possible that the decision may be discriminatory. Claims must be brought within 3 months and are subject to the ACAS early conciliation process.

Key points for employers: as an employer you should be able to demonstrate that you have followed the statutory requirements, avoid raising ‘technical’ points about employees’ requests, be able to show that you have seriously considered the request ideally from a perspective as wanting to accommodate employees rather than not wanting to and that you have considered alternatives perhaps not suggested by the employee. Consistency with other decisions can also be important. Finally as with many decisions a good explanation of the decision and the reasons for the decision should be given and, as always, keep records!


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