From 30 June 2014, employees with at least 26 weeks’ continuous employment will be able to make a request for flexible working under the statutory scheme for any reason. If they choose to do so:

1) The procedure to be followed will be far less prescriptive than that currently in force. The employee triggers the procedure by making a written request. The employer then has the three-month decision period (which can be extended by agreement) within which to consider the request, discuss it with the employee (if appropriate) and notify the employee of the outcome.

2) The employer must deal with the application in a reasonable manner.

3) The employer can still only refuse a request for one (or more) of the eight reasons set out in the legislation.

4) The employer may treat the request as having been withdrawn by the employee if, without good reason, the employee fails to attend a meeting arranged to discuss their request and a further meeting rearranged for that purpose. Similar provisions apply in respect of a meeting to consider an employee’s appeal against the rejection of a request.

The employee can complain to a tribunal if the employer:

 –  fails to deal with their application in a reasonable manner;

 –  fails to notify them of the decision on their application within the decision period;

 –  fails to rely on one of the statutory grounds when refusing their application;

 –  bases its decision on incorrect facts; or

 –  treats the application as withdrawn when the grounds entitling the employer to do so do not apply.

5) Only one request can be made in any 12-month period.

Comment

The right to apply for a flexible working pattern was previously restricted to those with responsibility for the care of certain children and adults. From 30th June it will extend to all employees with 26 weeks’ service or more. The procedure will be less formal and supported by an ACAS Code of Practice. The liberalisation of this right arises from the Consultation on Modern Workplaces paper published in 2011 and recognises the benefits to both employees and employers of greater flexibility. This development is a progressive one and recognises the need for employees to achieve a sustainable balance between work and home, and for employers be encouraged to retain their best employees by addressing their minds to the possibility of operating in a slightly different way. At the start of the recession some voluntary flexibility was accepted as the imperative aimed at avoiding or reducing the prospect of compulsory redundancies. In the same environment, the popularity of zero hours contracts grew considerably and the current estimate is that in excess of 600,000 workers are engaged under this arrangement. While there is likely to be a prohibition upon the exclusivity restriction in many zero hours contracts to enable the employee to offer their services to others, these contracts have proved very popular with employers and employees alike. To that extent, the widening of the qualification requirements for the right to request flexible working is entirely consistent with those earlier workplace developments.