Flexible Working for All

The Children and Families Bill will give the right to all with 26 weeks service employees to request to work flexibly. Currently it is limited to parents of children aged under seventeen or if disabled, under eighteen or to carers of dependent adults. The current statutory procedure will disappear and instead current HR procedures can be used, with the proviso that employers must consider requests in a “reasonable” manner.

ACAS has produced a draft Code which sets out the following "keys" to handling requests in a reasonable manner:

Employers should talk with their employee as soon as possible and allow them to be accompanied by a work colleague.

Employers will get a better idea of the changes the employee is looking for through proper discussion, which should, ideally, take place in a private place.

Employers should presume that they will grant requests unless there is a business reason for not doing so; they must inform the employee in writing of their decision as soon as possible; and if the request is accepted and discuss how and when the decision can be implemented.

Requests should only be rejected on the basis of one of the existing eight business reasons specified in The Employment Rights Act. If an employee's request is rejected, s/he should be allowed to appeal the decision.

The employer will need to notify the employee of its decision within three months, unless an extension is agreed. The request can be treated as withdrawn if the employee, without good reason, fails to attend either two consecutive meetings to discuss the request or an appeal.

The employee may bring a tribunal claim if the employer wrongly treats the request as withdrawn or if the employer's decision is not made in time. The claim must be brought within three months of the date on which the application is treated as withdrawn or the final decision is communicated.

Delays to the Children and Families Bill and a new target date of 21 March 2014 has been agreed for Royal Assent, delaying the extension of the right to request flexible working. The Government has confirmed that it will no longer be possible to implement the extension on 6 April 2014, but it has stated that it will look to implement it at an appropriate date as soon as possible in 2014.

However, what does the ‘right to request flexible working’ actually mean in practice? The ACAS Code is very short. The accompanying guidance give more examples. However the main problem that I can foresee is if we have an employee who wishes to work flexibly for reasons not related to parenthood and one who does, how will the employer make the choice between the conflicting requests? The ACAS Guidance says that the employer will have to look at both sets of facts carefully. Then it goes on to say:

“Sometimes it might not be possible and in these instances an employer could get the agreement of the employees concerned to consider some form of random selection such as drawing names from a “hat” to decide if unable to distinguish between all the requests. It would be good practice to make this approach to how decisions will be reached in these cases known to all employees from the outset in a flexible working policy.”

While I agree that setting expectation is sensible with all respect to ACAS it’s likely that unless they continue to get priority this will lead to a flood of discrimination claims from working mums.

In a small business there’s usually a lot of give and take. I have always allowed my employees to work very flexibly. In return they work for me when I ask them to and we’re all happy These new rights mean I can be held to ransom by less scrupulous employees or people who can’t grasp that they do not have the right to work any hours they want simply because they are (metaphorically) brandishing a baby. Indeed I have seen it regularly over the years.

I am very unhappy to be told by a Government who has no idea how to run a business that I have to do this because they tell me to. Heck, the Government can’t even get a bill through Parliament on time. How are they competent to tell us what’s good for business? I merely wonder... Their well-meaning but typically woolly thinking is likely to lead to more confusion and claims of discrimination. I sincerely hope that I’m wrong on this but it seems that by giving everyone the right to request flexible working we are likely to create a situation where some people are more equal than others and others will suffer disproportionately (probably people without children as employers panic about gender discrimination) and this will reinforce resentment and create greater divisions.

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