UK: Right to request ‘flexible working’ comes into operation

The right to request flexible working was extended to all UK employees with at least 26 weeks’ service with the same employer on 30 June 2014. This right had only been available to carers and parents. Unions have said this does not go far enough, while employer groups have questioned whether legislation was necessary.

Background to the legislation

All employees who have been with their current employer for more than 26 weeks were given the right to request flexible working on 30 June 2014. These new arrangements are part of wider changes designed to give individuals more flexibility over working patterns. For instance, from April 2015 maternity and paternity arrangements will be combined into one package. Working couples will thereafter have the option to share up to 50 weeks leave and 37 weeks pay for the first year of a child’s life.

Flexible working legislation is supported by a code of practice (174 KB PDF) published in June 2014 by arbitration body Acas. As with other codes of practice, this is issued under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992. The provisions of the code are intended to inform employers of their responsibilities and will be taken into account by employment tribunals when considering relevant cases.

The right to request flexible working does not mean that requests will be automatically approved. The only duty imposed on employers is that they must consider the request in a ‘reasonable manner’. If employers refuse requests, then the decision must be based on one or more of the following factors:

  • the burden of additional costs;
  • an inability to reorganise work among existing staff;
  • an inability to recruit additional staff;
  • detrimental impact on quality of service;
  • detrimental impact on performance (of the individual and/ or the organisation);
  • detrimental effect on ability to meet customer demand;
  • insufficient work for the periods the employee proposes to work;
  • planned structural change to the business.

These legislative changes were reported before they came into force. However, since coming into effect, they have generated a fresh wave of social and political comment in print and other media. 

Reaction of the social partners

The TUC welcomed the introduction of the legislation, but argued that the changes did not go far enough to help workers balance their work and home lives. Commenting on the new arrangements, TUC General Secretary Frances O’Grady said:

Unfortunately, the right to request is only the right to ask nicely. There is nothing to stop employers saying no. Of course not everyone in every company or organisation is able to work flexibly – some requests will always need to be turned down. But without the right to challenge employers, many workers will continue to lose out.

John Allan, National Chair of the Federation of Small Businesses, pointed out that, while flexible working is already a feature of many workplaces, further guidance on the way it is put into practice might ensure it is managed effectively. He said:

Small businesses often work in close-knit teams and are flexible by nature. Many small businesses therefore already offer flexible working and recognise the benefits of doing so, such as boosting productivity and staff morale, without the need for a ‘right to request’. In fact, a recent FSB survey found that four in five small firms currently offer flexible working or would consider offering it if asked.

However, because of the nature of these businesses, there may be occasions where employers have to turn down a request, potentially leaving the staff member unhappy. That’s why employers will need practical guidance so they can manage ‘right to request’ with confidence. Guidance will benefit employees too, giving them understanding of what this means in practice.

Employer groups are broadly supportive of flexible working, but have questioned the wisdom of legislating on an issue which has largely been dealt with by voluntary, individual arrangements.

Comments prior to the legislation highlighted potential problems with the legislative approach, such as the possible creation of friction between groups of employees and a larger administrative burden for employers. Small businesses, in particular, have argued that a legislative approach risks raising unrealistic expectations about the degree of flexibility which can be accommodated.

Taking the issue of friction between employee groups as an example, potential conflict might result from employees who feel that they have to take on the workloads of other staff who have been allowed to work flexibly. Alternatively, employees may feel aggrieved if their request for flexible working is turned down and other requests are supported. Employer groups also confirmed that their members feared being accused of discriminatory practice.

The entwined questions of how to deal with multiple requests and how to handle applications from different groups (particularly from parents and carers who had been privileged under the previous legislation) were issues on which employers felt greater clarity was needed. Under the code of practice, guidance suggests that applications should be handled in the order in which they are received. It should be noted, though, that even under the previous law, the legislation was still framed as a ‘right to request’, and parents and carers did not have automatic rights to flexible working. Issues of handling multiple requests and managing conflict between employee groups are not new.

Commentary

The positions of the social partners reflect the perennial problem of the legislative regulation of the employment relationship. For the group of employers who are generally supportive of flexible working arrangements these changes to legislation (and the accompanying Acas code of practice) are likely to have little effect on work patterns of employees. For other employers who are hostile to flexible working or neutral on the issue, the legislative changes are also likely to have little effect. Employers retain the right to refuse requests and the legislation does not make it possible for employees to appeal against a refusal.

In summary, it seems unlikely that the legislation will trigger a raft of applications for flexible working, given that many employees were previously able to ask for this informally. Employers’ fears of being inundated with requests are not likely to be realised. No provisions have yet been made formally to monitor these changes. However this evolving situation will, without doubt, be explored in various employer and employee surveys.

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