Changes to Flexible Working Legislation
Changes to flexible working legislation come into force on 30 June and could lead to a surge in flexible-working requests from employees.
The change to the rules extends the right to ask for flexible working to any employee who has been employed for 26 weeks, not just parents of children under 17(or 18 if disabled), and those who have responsibilities as a carer, as is currently the case.
In addition, the new law dispenses with the current prescriptive procedure for considering flexible working requests, replacing it with a duty on employers to deal with requests in a ‘reasonable’ manner.
However, the basic right to request flexible working is unchanged. It remains only a right to ask, and not a right to have. Employers can continue to refuse a request on any of eight (very wide) business grounds. A tribunal cannot normally investigate the rights and wrongs of the refusal, only whether the procedure has been properly followed. Maximum compensation for a failure to comply is eight weeks' pay (currently capped at £464 per week).
The extension of the right to request flexible working to all employees, subject only to a 26 weeks’ service requirement, is likely to present employers with competing requests for flexible working, not all of which they will be able to accommodate.
Although employers are not required to make value judgements about the most deserving request, they must be careful not to infringe the Equality Act 2010 where, for example, a flexible working arrangement would be a reasonable adjustment for a disabled employee, or where a rejection of a new mother’s request to work flexibly could be seen as indirect sex discrimination.
Employers will inevitably be influenced in their decision making by the threat of potential sex and disability discrimination claims from some employees whose request for flexible working is rejected.
If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown.
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