JULY 2014

Legal Focus

UK Employment Law: The New Flexible Working Regime

In the UK the new Flexible Working Regulations 2014 came into force on 30th June 2014. The original right to request flexible working was fairly limited and the request was usually made in order to care for certain children and adults and the employer and employee had to follow a prescriptive statutory procedure. We find out by speaking to Ronald Clarke from OW Law.

Please introduce your role and your firm.

I am head of employment and legal disputes at OW Law LLP.

I specialise in handling high value and

complex employment disputes. OW is a specialist dispute resolution and employment law firm. In 2014 OW were awarded the honour of Employment Law Firm of the Year in the UK in recognition of its exceptional performance, recognised expertise and innovation in client care.

Please can you explain the main changes under the new employment regime?

Under the new regime, employees with at least 26 weeks continuous employment will be able to make a request for flexible working for any reason and the procedure to be followed is now far less prescriptive.

The employee triggers the new procedure by making a written request and the employer then has a three-month period (which can be extended by agreement) within which to consider the request, discuss it with the employee (if appropriate) and notify the employee of the outcome. The employer must deal with the application in a reasonable manner.

Requests cannot be made under the new regulations by agency workers, self-employed contractors or consultants. Only one request can be made in any 12 month period.

The legislation recognises that an employer may have entirely legitimate business reasons why it cannot accommodate a flexible working request and there are eight specific grounds for rejecting a request which are the same grounds which applied before 30th June 2014.

What are the legal risks when dealing with flexible working applications?

The employee can complain to a Tribunal if the employer fails to deal with the request properly. Employers should also be aware that a failure to deal with a flexible working request properly might also trigger further statutory protection which might

result in further discrimination and/or constructive dismissal claims, for example where employees seek to vary their working hours in accordance with childcare commitments, religious requirements or are seeking adjustments because they are disabled.

How can these risks and/or challenges be navigated?

There are a number of key practical issues which employers need to consider and apply in order to reduce the chances of claims being made against them.

It will be important for employers to be consistent in their assessment of requests, particularly if they receive a number of requests from employees in the same team or department.

Employers should draw up a flexible working policy and ensure a consistent approach.

The new regulations will be supported by a new ACAS code of practice and an ACAS guide which must be followed.

While the new procedure is now far less prescriptive, employers should make sure that they have written procedures in place to ensure that a request is considered promptly and in a reasonable manner and that the employee is notified of the outcome within the 3 month period.

If a request is to be rejected, the employer should provide a clear and credible explanation of why the particular request cannot be accepted in line with the eight specific grounds.

What are the penalties if employers fail to comply with these new rules?

An employee who considers that an employer has failed to properly comply with the statutory procedure may present a claim to the employment tribunal. If the tribunal finds that the claim is well- founded, the tribunal must make a declaration to that effect and may make an order for reconsideration of the request and/or an award

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of compensation which is limited to a maximum amount of 8 weeks pay which itself is also subject to a statutory cap.

Is there anything else that you would like to add?

It has not yet been appreciated how wide the range of possible work patterns is. The scope of the legislation effectively includes applications for part-time working, annualised hours, compressed hours, flexi-time, home-working, job sharing and shift working to name but a few.

Although employers who are able to accommodate flexible working requests have generally reported favourable results in terms of staff retention and morale, it is inevitable that smaller employers, which constitute the vast majority of UK employers, and those with highly specialised workforces face more of a challenge in seeking to accommodate requests to work flexibly.

However, there are positives. Employers that develop a business strategy for flexible working might gain a competitive advantage in recruitment and retention, increased business agility, costs savings, improved productivity, motivation and performance. LM

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Contact:

Ronald Clarke LL.B (Hons), Grad.ICSA, PgC, PgD, LL.M Solicitor and Accredited Mediator For and on behalf of OW Law LLP

Tel: 01904 232904 Email: ronald.clarke@owlaw.co.uk