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New flexible working regime in the United Kingdom

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The legal right to request a flexible working arrangement in the UK is being extended to all employees with 26 weeks’ service, with effect from 30 June 2014. Until then, it has been restricted to …

The legal right to request a flexible working arrangement in the UK is being extended to all employees with 26 weeks’ service, with effect from 30 June 2014. Until then, it has been restricted to those with caring responsibilities for young children or dependant adults. This article by Laura Farnsworth from our UK member firm Lewis Silkin, discusses the changes and the implications for employers.

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  • 1.   New flexible working regime in United Kingdom Publication Date: 26 June 2014 | Author(s): Laura Farnsworth Member Firm(s): Lewis Silkin LLP Country: United Kingdom The legal right to request a flexible working arrangement in the UK is being extended to all employees with 26 weeks’ service, with effect from 30 June 2014. Until then, it has been restricted to those with caring responsibilities for young children or dependant adults. This means that from 30 June any employee with 26 weeks’ continuous service has the right to ask for a change to the hours or times they work or where they work - for any reason. Alongside this, the existing “right to request” procedure - with its meetings, appeals and strict time limits – is being repealed and replaced with a general requirement for employers to deal with applications “in a reasonable manner” and to notify the employee of their decision within a three- month time period. (This is extendable by agreement.) Employment tribunals must have regard to a new code of practice issued by the UK’s conciliation service ACAS when determining whether an employer has behaved reasonably. This recommends holding a meeting to consider whether to approve a request, at which the employee should be allowed the right to be accompanied (although this is no longer mandatory). It also recommends allowing an appeal if the request is turned down (but notably does not specifically mention an appeal meeting). The Code is supported by a new ACAS guide, including practical examples. What is not changing Employees still have to submit a written request in the same format as before (although they will no longer have to show they meet the eligibility requirements). They remain limited to one request within each 12-month period. The eight permitted grounds on which an employer may turn down a flexible working request also remain unchanged: • the burden of additional costs • an inability to reorganise work amongst existing staff • an inability to recruit additional staff • a detrimental impact on quality • a detrimental impact on performance • detrimental effect on ability to meet customer demand • insufficient work for the periods the employee proposes to work • a planned structural change to the employer’s business. The penalty for failing to consider a request in the manner prescribed by legislation is still what the tribunal determines is just and equitable, up to a maximum of eight weeks’ pay (subject to the statutory limit on a week’s pay, currently £464). Implications for employers
  • 2.     One advantage for employers is the removal of “red tape”, such as the requirements to hold meetings within strict time periods (normally 14 days). Employers might also decide they will no longer offer an automatic right of appeal against a decision to turn down a request (or, at any rate, not guarantee an appeal meeting). However, because the prescriptive statutory procedure for dealing with requests is being replaced with a duty to deal with requests in a “reasonable” manner, it is crucial for employers to ensure they are familiar with the new code of practice and guidance from ACAS and assess how the changes affect their approach. Employers should review and amend their existing policies on flexible working and home working and consider how they are going to prioritise requests and document any agreed changes. Managers should also be trained so that they are fully equipped to deal with requests under the new regime. In particular, one likely outcome is that employers may start receiving multiple requests from different employees asking to change their working patterns for diverse reasons. In many cases, employers will not be able to agree to all requests. The risk of discrimination claims is likely to increase because of the potential for many more employees with protected characteristics to make a request. ACAS recommends that employers should set out a policy framework for deciding between competing requests. Even if that step is not taken, it is important for managers and HR to become attuned to the need to be more sensitive to requests from (for example) older employees, or those with disabilities, given the increased risk of discrimination claims from these groups. It is also worth remembering that the risk of refusing flexible working leading to indirect sex discrimination claims from employees with caring responsibilities remains the same as under the previous rules. Taken from the Ius Laboris Knowledge Base: www.globalhrlaw.com About Ius Laboris Ius Laboris is an alliance of law firms offering employers cross-border employment and pensions law advice. It has 1,300 specialist HR lawyers in over 150 cities and 44 countries. Ius Laboris offers access to the best local HR law experts in one global team with 20% more ranked employment lawyers (Chambers & Partners, November 2013) than any other global HR legal services organisation. Further, Ius Laboris has 50% more recommended lawyers than its nearest rival in a recent survey in PLC's employment law guide. Clients include many household names as well as multinational companies in all sectors ranging from energy, retail and technology to pharmaceuticals. For more information on Ius Laboris, please visit iuslaboris.com.

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