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Extension of Right to Request Flexible Working

Today, on 30 June 2014, the Flexible Working Regulations 2014 will come in to force extending the current right to request flexible working arrangements to all employees with 26 weeks continuous service.

Previously, in order to make an application for flexible working arrangements the individual must be employed, have 26 weeks continuous employment and not have made a request within the last 12 months. In addition to this, the employee must make the request in order to facilitate caring for a child under 16, a disabled child under the age of 18, or they must be considered a carer within the meaning of the guidance issued by the Department for Business, Innovation and Skills.

There was a statutory procedure currently in place that both employers and employees must follow in relation to such requests.

From today, all employees with 26 weeks continuous service will have the right to make a request for flexible working. The new regulations have also simplified the statutory procedure.

From receipt of a request the employer now has three months within which to consider the request, discuss it with the employee and notify them of the outcome. The requirement for dedicated meetings with the employee has been removed.

The employer must deal with the request in a reasonable manner and it may still only be refused for one of the reasons set out in s80(G)(1)(b) Employment Rights Act 1996 (the "Prescribed Grounds"). Failure to deal with the application in a reasonable manner or to rely on one of the Prescribed Grounds when rejecting a request could lead to an employee bringing a claim in the Employment Tribunal. The prescribed grounds are as follows:

1. That the additional cost would place a disproportionate burden on the employer.
2. It would have a detrimental effect on the employer's ability to meet customer demand.
3. The employer is unable to re-organise work among existing staff.
4. It is not possible to recruit additional staff to cover the workload.
5. It will have a detrimental effect on the employee's performance and/or quality of work.
6. There is insufficient work during the time the employee proposes to work.
7. The hours the employee intends to work do not fit in with the employer's proposed structural changes.

An employee is still only able to make a single flexible working request in any 12 month period.

By widening the scope of the right to request flexible working, employers have expressed concerns that they will be faced with many more requests from employees - in the event that they have a sound business reason they will still be able to reject any requests. However, by simplifying the statutory process for dealing with requests the new regime should mean that such requests do not represent too much of a burden.

In light of the changes we would recommend that employers review their flexible working policy to take account of the fact that the statutory procedure has been revised, and to ensure that it is clearly set out to employees when they are eligible to make such a request and on what grounds it can be refused.

If you need any assistance dealing with flexible working requests or drafting a flexible working policy please contact Stephen Moore.

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