Flexible working — changes to the law expected from 30 June 2014

The law on flexible working is to change significantly on 30 June 2014. The new law gives all employees the statutory right to request a change to their contract terms to work flexibly, as long as they have worked for the employer for 26 weeks on the date the application is made. From 30 June, there is no need for an applicant for flexible working to be a carer.

The new law is found in Part 8 of the Children and Families Act 2014 (CFA 14).

The new law abolishes many features of the old statutory request procedure. Instead, the employer is under a broad duty to “deal with the application in a reasonable manner” (section 80G(1)(a) as amended by section 104 CFA 14).

Acas has produced a Code of Practice, along with new guidance: Handling requests to work flexibly in a reasonable manner (www.acas.org.uk/media/pdf/n/b/DRAFT-Code-of-Practice-on-handling-in-a-reasonable-manner-requests-to-work-flexibly.pdf).

The Code will be taken into account by tribunals.

Only one request to work flexibly can be made in any 12 month period and any contract change will be permanent unless the parties agree otherwise. There is nothing to stop employers agreeing to temporary arrangements to respond to short-term challenges, such as bereavement or a short study course.

The new Acas guidance encourages employers to develop a policy for handling flexible working requests, to ensure a consistent approach.

The policy should cover:

• how to make the application — who to make it to and what it should include;

• a statement that the employer will consider the request and only reject it for one of the eight business reasons listed in the legislation (see page 240);

• arrangements for employees to be accompanied to any meeting to consider the request. Note that there is no statutory right to be accompanied by a trade union rep under the new flexible working regime, so this needs to be negotiated;

• arrangements for appeals. Note that there is no formal right to an appeal under the new regime. The Acas Code says only that the employer “should” allow an appeal, so again a formal right to appeal in all cases needs to be negotiated; and

• time limits for dealing with requests.

The request needs to include the following information:

• the date of the application, the change to working conditions the applicant would like and when they would like it to come into effect;

• what impact, if any, they think the change will have on the business and how they think that effect might be dealt with;

• a statement this is a statutory request; and

• a statement as to when they made any previous application for flexible working.

Source: para 3, Acas Code, 2014.

An employer is free to ask for less information than this from the employee and if they already operate a procedure that does not insist on this information, they can continue to follow it. Employers must be clear as to what information employees must provide. An employee making a request under the duty to make reasonable adjustments (section 20 EA 10) should state this.