Employment Team WorcesterBreakfast Meeting

Tuesday 1 July 2014Overstretched?

Flexible Working in 2014

Michael Stokes, Partner and

Stephenie Malone, Associate SolicitorEmployment Team

Flexible Working

• CIPD Flexible Working provision and uptake survey 2012 – 63% of organisations offer flexible working to

all • 7/10 large employers• 59% of medium businesses• 51% small businesses• 47% micro businesses

The right to request prior to 30 June 2014

• Could be made to care for certain children and adults by employees with 26 weeks’ continuous service

• A statutory procedure to be followed • Refusal on one of eight grounds • Only one request could be made in any 12 month period• Complaints to a tribunal could be made on the grounds that the

employer has: – Failed to comply with the statutory procedure– Refused the request for a reason other than the eight

prescribed reasons– Based its decision to reject the request on incorrect facts

Key changes from 30 June 2014

• All employees with 26 weeks’ continuous service

• Less prescriptive procedure• Employer must deal with request in a

reasonable manner• Can treat request as withdrawn if employee

does not attend meeting without good reason• Wider grounds to complain to a Tribunal

Exercising the statutory right

• Employees• with 26 weeks’ continuous service;• who have not made a previous request

within a 12 month period.

• Submit a request in writing which must satisfy the statutory criteria.

What kind of change can be requested?

• 3 broad categories• A change to hours of work • A change to the times of work • A change to the place of work

• Possible work patterns?

• Temporary or permanent?

Dealing with the request

• In a reasonable manner; • No statutory definition;• Discussion with the employee;– Changes to the terms and conditions of

employment– Allow the employee to be accompanied

• Weigh up the benefits for the employer and the employee

Dealing with the request (2)

• The decision period– 3 months from the date on which the employee

made the request• Including the decision on an appeal

–Or a longer period that the parties have agreed• Trial periods • Variation of the contract once an agreement has

been reached• Dealing with more than one request at a time?

Rejecting or refusing a request

• Rejection – Does not meet the statutory requirements– Technically flawed

• Refusal for one of the 8 prescribed reasons– The burden of additional costs– Detrimental effect on ability to meet customer demand– Inability to reorganise work among existing staff– Inability to recruit additional staff– Detrimental impact on quality– Detrimental impact on performance– Insufficiency of work during the period the employee

proposes to work– Planned structural change

Appeals

• Not specifically mentioned in the legislation

BUT

• Part of dealing with the matter in a reasonable way - ACAS Code

• No prescribed grounds

Withdrawing requests

• Employee can withdraw - cannot make another request under the statutory scheme for 12 months

• The employer can treat the request as withdrawn where the employee;• Without good reason fails to arrange the first

meeting and a rearranged meeting without good reason

• Has appealed and fails to attend the first meeting and a rearranged meeting to discuss the appeal without good reason

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Interaction with other areas of the law

• Sex discrimination • Maternity leave

• Disability discrimination • Constructive dismissal

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Complaints to an Employment Tribunal

• ET’s role is very restricted • Cannot question the commercial rationale or the

business reasons for refusing a request • It will;

• review the procedure;• consider whether the request was taken seriously; • consider whether the decision was based on

correct facts • consider whether the reason given falls within one

of the prescribed grounds

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Flexible working request in practice

Example Scenarios

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