The government may have delayed implementing the wide-ranging Children and Families Bill, which is still undergoing amendments, but employers should be now be preparing for its impact on their businesses.
11 March 2014
A seismic change to a business's obligation to consider flexible working requests was due on 6 April.
The government says the changes will not now come into force on this date, but has failed to stipulate when they will.
Currently, any employee with 26 weeks' service can request - not require - to work flexibly to fulfil their caring responsibilities.
They must be making the request to care for a child under 17 years of age or for an adult in need of care and they are only allowed to make one request in any 12-month period. If the employee meets these requirements, his or her employer is obliged to follow a strictly timetabled procedure to consider the request.
Once it receives the written request, an employer must:
1) Meet with the employee within 28 days of receipt of the application
2) Write to the employee with a decision within 14 days of the meeting
3) Allow the employee 14 days to appeal the decision
4) If the employee appeals agianst the decision, hold a further meeting within 14 days of receiving the employee's appeal and write to the employee with the appeal decision within 14 days of the appeal meeting
This is set to radically change once the Children and Families Act becomes law. First, and most importantly, all employees will be entitled to request to work flexibly after they have completed 26 weeks' employment.
That employees will no longer need to have any caring responsibilities will level the playing field between those with caring responsibilities and those without and if we are to believe the national press, dissipate the resentment of those colleagues who do not benefit from working flexibly. Whether for studying, pursuing sporting activities or a better work-life balance, an employee will be able to apply to their employer to change the hours they work, the time they work and the place they work and the employer must consider it.
In this economic climate a flood of requests is unlikely. It is to be expected that facilities managers will see increased use of the request process and more management time will be required to consider requests as there is a greater attempt by employees to challenge their working patterns.
Second, and this time to benefit of employers, there will be a removal of the rigid procedure and time limits once the act becomes law. Instead, an employer will be required to deal with a flexible working request in a "reasonable manner" and to notify the employee of the decision within three months of the application. This can only be good news for employers who have failed to jump through the procedural hoops in time and faced paying a penalty of eight weeks of the employees' pay. Care will still be required - employers may face difficult decisions where employees have lodged overlapping or competing requests to work flexibly and, of course, the spectre of making a decision that treats one employee unfavourably because they have a protected characteristic must still be considered.
Extending the right to request will normalise working on a more flexible basis. Just as a parent or carer's request should not have been seen as unusual or audacious up until now, employers will come to expect applications to work outside of the 9 to 5. As a result, many employers will embrace flexibility for all their employees, where it fits the business model.
Some businesses are already flexing their approach because they have found that a more flexible workforce saves office costs and makes for better employment relations, staff retention, motivation and morale.
The universal right to request to work flexibly will remove perceptions of "special treatment". Because most of those making these requests under the current regime are mothers it will also be a positive step in combating discrimination against women in the workplace. It will influence a change in workplace culture, not by compulsion, but because of the equal opportunity for all employees to have their requests considered.
Not every request must be accommodated once the law changes. An employer will still be able to refuse a request for eight business reasons:
1) The burden of additional costs
2) Detrimental effect on the ability to meet customer demand
3) Inability to reorganise work among existing staff
4) Inability to recruit additional staff
5) Detrimental impact on quality
6) Detrimental impact on performance
7) Insufficiency of work during the periods the employee proposes to work
8) Planned changes.
In practice, it will be harder to merely pay lip service because an employer will have to show it has given the request serious consideration. Also, as flexible working requests increase, an employer that routinely rejects requests will lose credibility with its workforce and be less attractive to potential recruits.
The Children and Families Act marks a balance between employee-friendly legislation and cutting red tape.
Brace yourselves - its influence over time will produce powerful results.
Melanie Stancliffe, partner, Thomas Eggar LLP