Flexible Working: A day one right?

Under new Labour Party proposals the right to request flexible working would be made available to all employees, not just those that have completed 26 weeks service, as per the current rules. So what does this means for employers and employees.

What is flexible working?

Flexible working covers a wide range of working patterns including part-time, flexi-time and home working. Under Part 8A Employment Rights Act 1996 employees have the right to request flexible working by applying for a change in their Terms and Conditions of Employment relating to:

• Hours an employee is required to work.
• Times an employee is required to work.
• Where the employee is required to work.
• Such other aspect of the employee’s terms and conditions as may be specified by regulations.

Who can apply for flexible working?

The right used to apply solely to parents and carers. However, the Flexible Working Regulations 2014 extended the benefit to all employees who have completed 26 weeks continuous service.  This means a much larger pool of employees are entitled to request flexible working e.g. grandparents and employees who have no childcare responsibilities. On 23rd February 2019, the Labour Party proposed the right to demand flexible working; with no qualifying service required!

Can an employer refuse a flexible working request?

Under the current Regulations, employers are required to deal with an application ‘in a reasonable manner’. ACAS has produced a statutory Code of Practice – handling in reasonable manner requests to work flexibly. It is important to note that employees do not have the right to demand flexible working, only ‘request’ it, however, employers can only refuse a request for flexible working if they can show that one of 8 grounds apply:

• the burden of additional costs
• an inability to reorganise work amongst existing staff
• an inability to recruit additional staff
• a detrimental impact on quality
• a detrimental impact on performance
• detrimental effect on ability to meet customer demand
• insufficient work for the periods the employee proposes to work
• a planned structural changes to the business.

An Employment Tribunal can only interfere with an employer’s decision to refuse an application if the employer failed to deal with the application in a reasonable manner and its decision is based on an invalid business reason or incorrect facts. The Regulations only apply to ‘employees’ and not the wider definition of ‘worker’. Agency workers, members of the armed forces, share fisherman and women and employee shareholders are excluded from the right. It is clear regardless of the Labour Party’s most recent proposal to create a 'presumption in favour of flexible working' that the subject of flexible working is one that is going to continue to grow in years to come as working practices including the use of home working and technology increase (and improve?). Employers, therefore, need to be pro-active in addressing flexible working practices and ensure they handle all requests for flexible working in the correct manner.