Flexible working for all

Around 10 million workers currently have the right to request flexible working through caring for children or dependents. It is estimated that up to 20 million workers will now be able to request to work flexibly. The Government expects the extension of the flexible working rules to benefit older workers and young people looking to combine work with education and training. It is only a right to request flexible working – not a right to be allowed to work flexibly.

Currently, out of every 5 requests made, 3 are granted immediately, 1 is granted after negotiation, and 1 is rejected – with these changes, will this trend continue or start to reverse?

The process has also been made easier. Employees now only have to make a written request, stating their proposed flexible work arrangement and the reasons why. The employer has to consider the request within 3 months, and do so reasonably (there is no definition as to what amounts to "reasonably"). The rules state that the request should be dealt with on a "first come and first served" basis.

An employer can still refuse a request for one (or more) of the eight permitted reasons including where it would impose a costs burden on the employer, would detrimentally affect the quality of the product or service, or where the employer is unable to reorganise work amongst existing staff.

Inevitably this is more likely to impact adversely on small companies which may not have the resources to absorb the additional work created by someone working flexibly – by the same token however, they may well have more valid reasons to refuse than larger organisations which have a greater capacity to cope.

If the employer does not consider the request, or if it refuses for a reason outside the permitted reasons (or the employee thinks it falls outside) the employee may have recourse to a tribunal to determine the issue. A tribunal cannot question the employer's commercial decision; all it can do is determine whether or not the refusal falls within one of the permitted reasons, and whether or not the procedure was followed correctly. Any remedy will require the employer to reconsider its decision (but not necessarily to reverse it), and an award of compensation which is at the discretion of the tribunal.

It remains to be seen whether the new rules will see an increase in requests for flexible working; and whether any rejected requests will see the light of day in an Employment Tribunal.

For more information about flexible working, please contact our specialist Employment & HR team.