UK: Flexible work regulations published: employers should review their policies

From 30 June 2014, the right to request flexible working will become available to all employees with 26 weeks' service, not just those with caring responsibilities. Implementing regulations have now been published, available here.

A new regime will apply to flexible work requests made on or after 30 June. The statutory procedure for dealing with a request will be replaced with a duty to consider requests in a reasonable manner, supplemented by an Acas Code of Practice. (The Code is currently still in draft, but due to be approved under the negative resolution procedure by 18 June 2014.) The change means that employers are no longer obliged to allow employees to be accompanied by a work colleague to a discussion meeting, nor to allow an appeal where a request is rejected, although the draft Code states that these remain good practice. The strict time limits for meetings and notices under the old procedure are also removed. Instead, the employer has 3 months to consider the request, discuss it with the employee if appropriate and notify its decision; this period can be extended by agreement with the employee (perhaps to allow for a trial period).

Employers may need to update their flexible working policies to reflect these changes. Please do contact your usual HSF contact if you would like further advice on this.

Various elements of the right remain unchanged: employees can only make one request a year, and the employer can refuse on any of eight broad business grounds. A tribunal can award up to 8 weeks' pay (currently capped at £464 a week) for failure to properly follow the procedure.

Acas has also published a good practice guide to supplement the code, available here. Of particular interest to employers will be the section on handling competing requests, at pages 15 to 17. The guidance states that employers are not required to make value judgements about the most deserving request. It does not expressly note that this might be subject to the positive duty to make reasonable adjustments for a disabled employee, though this is referred to earlier in the guidance.

If all requests cannot be accommodated, the guidance suggests that employers discuss with the employees to see if there is room for adjustment or compromise and, if not, that the employer could get the employees’ agreement to some form of random selection; ideally the approach in such cases would be set out in a flexible working policy. The guidance also notes that, if an employer is unable to accommodate a request due to the number of other employees already working flexibly, it would be good practice to consider calling for volunteers working flexibly to change their contracts back, in order to create capacity for granting new requests.

Employers will, of course, need to bear in mind the potential for some employees to bring discrimination claims if their requests are refused without adequate justification. It will be important to put in place a paper trail to explain the decisions made.