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The 30th June 2015 will mark the first anniversary since the right to request flexible working was extended to any employee with 26 weeks continuous service regardless of caring responsibilities.

The day before this anniversary will see the start of Wimbledon 2015 and the commencement of four months of sporting battles that are watched by millions in the United Kingdom.

The timing is interesting as 2015 will be the first full sporting summer where employees can utilise the right to request flexible working. The right can be used for permanent or temporary arrangements between employer and employee and is brought up in a sporting context as employees do turn to their employers for temporary flexibility in order to enjoy global sporting tournaments such as football’s World Cup or the Olympic Games.

Although neither the football World Cup nor the Olympics will take place this year the Ashes, the Open Golf Championship, the Tour de France and the World Athletics Championships will all follow Wimbledon and later in the year the Rugby World Cup is another event which is not entirely compatible with the traditional 9 to 5, Monday to Friday working day.

The long-awaited changes and the right to request flexible working were put in place after the Children and Families Act 2014 received Royal Assent and the Act enables eligible employees to request a change to their working hours, time or location.

It is worth reminding employers that the new right to request flexible working does not just benefit employees as the old administrative burden that employers had to follow when considering a flexible working request has gone and the 2014 Act replaced them with a duty on employers to deal with requests in a ‘reasonable manner’, although there remains some uncertainty over what it actually means in practice.

As the Act does not give much help to employers in understanding the concept of reasonableness, the government has provided the Acas Code of Practice to address this. The Code is worth considering as it will have statutory force and will be taken into account by employment tribunals when faced with considering relevant cases.

But what are the real advantages of flexible work schedule for employees? Surveys and research have found that a flexibility results in reduced absenteeism and tardiness, it increases the ability to recruit outstanding employees as the organisation is reflected as an employer of choice with flexible work schedules. As a consequence may face reduced turnover of valued staff, whilst the additional flexibility allows employees to work when they accomplish most and enjoy working (e.g. the morning person vs. the night person).

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Practically, when an employer receives a request from an employee the request should be discussed with the employee as soon as possible. Employers should consider whether to allow an employee to be accompanied at a discussion by a work colleague or a trade union representative if they wish.

The request should be considered objectively by the employer, examining the benefits of the requested changes in working conditions for the employee and the business and measuring these carefully against the business rationale and any adverse effects the changes may have on the business. Naturally the employer must also weigh up any cost and logistical implications of granting the request.

If the requested is agreed by the employer or agrees a modified version of the request, the employer should maintain dialogue with the employee as to how and when the changes might most suitably be implemented.

However, it is important to remember that employees can only bring one flexible working request within a 12 month period.

Employers are permitted to reject a request, but only for one of the eight business reasons in the Act. The reasons are where an employer’s refusal would lead to:

  • Additional costs
  • An effect on the ability to meet customer demand
  • An inability to re-organise work among existing staff
  • An inability to recruit new staff
  • A detrimental impact on quality
  • A detrimental impact on performance
  • Insufficiency of work during the period of work proposed by the employee
  • An effect on planned structural changes to the business

An explanation of these reasons, including how they apply to the request, must be given to the employee. Whilst the regime for dealing with flexible working requests has generally become more relaxed from 30 June 2014, employers still need to make their final decision as to whether to approve or reject a request (including any appeal) within 3 months of the request unless extended by mutual agreement.

There are other matters to consider and employers should be aware of the complexities of handling competing requests from employees and must be careful not to discriminate inadvertently against employees because of their protected characteristics under the Equality Act 2010; for example, disability, sex, pregnancy and maternity.

Employers should take the following practical steps:

  • Review and/or amend existing flexible working policies. Consult with employees and their representatives to formulate a clear written policy for handling flexible working requests to ensure consistency in handling requests
  • Review home-working practices and policies. Employers retain the responsibility for the health and safety of employees on flexible working arrangements. Home-working practices and policies should take account of this
  • Consider training. Managers are in a good position to make flexible working request decisions as they are generally closer to individuals and therefore better placed to see how flexible working could work for a specific employee from a practical perspective. Managers must not reject a request outright; they should be supportive and encouraging
  • Consider examining in advance the staffing requirements of the business. This will help employers to deal with requests and justify their decisions

Follow the above and you may generate long term goodwill from employees and a few sporting topics of conversation over lunch!

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