1. Prospectus Breakfast Briefing
Flexible working: Heralding a brave
new world or a logistical nightmare for
employers?
Fudia Smartt

2. Introduction
 Law changed on 30 June 2014 – The Flexible Working
Regulations (“FWR”) 2014, Part 9 of Children’s and
Families Act 2014
 ACAS Code of Practice and Guide
 Previously request to work flexibly only open to those
caring for children or adults
 Will this lead to the cultural change envisaged?

3. Legal position since 30 June
Eligibility
 Only open to employees. Right applies to fixed-term
employees and those already working under a flexible
working pattern
 Requests cannot be made by agency workers,
members of the armed forces or employee
shareholders
 Employee must have 26 weeks’ continuous service by
the date on which they make the request (regulation 3)
 Only one request can be made under the statutory
scheme within any 12 month period

4. Procedure for requests
 Meant to be less procedural
 A valid application must:
 be in writing;
 be dated;
 specify the change the employee is seeking and when
they would like it to take effect;
 Explain what effect, in any, the change would have on
their employer and how in the employee’s opinion any
such effect could be dealt with;
 State whether the employee has previously made an
application the employer, and if so, when
Section 80F (2) ERA 1996 and Regulation 4, FWR

5. How to deal with a request
 Deal with request in a “reasonable manner”
 Notify employee of decision within the decision period
 Trial periods
 Refuse on the grounds of a prescribed reason
 Dealing with several requests simultaneously
 Informal requests for flexible working

6. Dealing with requests in a
reasonable manner
 No statutory definition
 ACAS Code of Practice and ACAS Guide
 ACAS Code, para 4 – employers should arrange to talk
with employees as soon as possible after receiving request
 Good practice to let an employee know if there will be any
delay in discussing the request
 Employers should make employees fully aware of the
impact of the change on their employment e.g. if resulting
in reduction in salary, bonus or pension entitlements.
Employers to consider if appropriate to advise employee to
seek advice from appropriate benefit provider

7. Dealing with requests in a
reasonable manner
 ACAS Code recommends that employees be entitled
to be accompanied by a work colleague
 Meetings should take place at a private place where
discussions will not be overheard
 Employers should consider requests carefully,
weighing up the benefits of the requested change and
any possible adverse impact

8. Decision Period
 Decision period is 3 months or longer if agreed between the
parties (section 80G (1B) ERA 1996)
 A request is deemed to be received:
 on the day of transmission if sent electronically (where
employers have agreed to receipt electronically);
 the day it would have been delivered if sent in the
ordinary course of post; and
 If delivered personally, the day it was received
 Request to extend the decision period can be made either
before the original period ends or with retrospective effect,
within the three months beginning with the day after that on
which the original decision period came to an end

9. Trial periods
 No legal requirement to provide a trial period
 ACAS Guide suggests employers may wish to use trial
periods instead of rejecting requests if unsure whether the
arrangements will work or uncertain about impact on
business and other employees’ requests for flexible working
 Sensible for employers to extend decision period where
taking into account trial period and possibility of appeal it will
take longer than 3 months to notify the employee of the final
decision
 Employees cannot insist upon trial periods although in
appropriate cases an employee may be able to argue they
should be have been offered this as part of dealing with their
request reasonably

10. Reaching agreement
 If request agreed the new work pattern will amount to a
permanent contractual variation, unless otherwise agreed.
Consider trial periods and compromise positions
 Employer is obliged to issue a section 4 statement – a
written statement of changes to the employee’s terms and
conditions that have been provided in accordance with
section 1 – s. 4 ERA 1996
 In addition to s.4 ERA, it will be good practice for
employers to issue new contracts or at least produce a
letter setting out the terms and expressly amending the
contract with effect as from the stated date

11. Reaching agreement
 Also good practice for employers to review new working
patterns with employees to ensure that they are working
and meeting both parties’ needs
 Once a new working pattern has been agreed any change,
including to revert to the previous working pattern, will be a
contractual variation. Any unilateral change by the
employer will therefore amount to a breach of contract.
Further, if the employee wishes to change their working
pattern they will have to seek their employer’s agreement
to this as they will be unable to make a further flexible
working request for 12 months from the date of their
request

12. Rejecting a request
 Ineligibility e.g. lacking requisite service. Advisable to still consider such
requests
 Technical flaws: Hussain v Consumer Counselling ET/1804305/04
 Refusal for a prescribed reason – S. 80G(1)(b), ERA 1996:
 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 periods the employee proposes to work.
 Planned structural changes
 No reasonableness test – subjective on the part of the employer.
 Removal of statutory requirement to include a “sufficient explanation”
 ACAS Guide suggests employer’s considerations of requests should be
objective
 Consider trial periods and any compromise positions

13. Appeals
 No right of appeal
 The ACAS Code however suggests that employees should be
allowed to do so. Consequently, it may come to be seen as an
essential part of dealing with flexible working requests in a
reasonable manner
 No prescribed grounds of appeal
 If possible, appeals should be heard by someone: (i) who was
not involved in the process; and (ii) is more senior than the
original decision-maker
 Outcome of appeal should be confirmed in writing, dated and
where the appeal is rejected, state the prescribed ground relied
upon

14. Withdrawing requests
 An employee can withdraw a request at any time. However,
they will be prevented from making another request for 12
months from the date of their initial request
 An employer can treat a request as withdrawn if:
 the employee, without any good reason, fails to attend both
the first meeting arranged by the employer to discuss their
request and the next meeting arranged for that purpose
 the employer has allowed the employee to appeal against the
rejection of their request or to make a further appeal and they
fail to attend both the first meeting arranged by the employer
to discuss their appeal and the next meeting arranged for
that purpose
S. 80G (1D), ERA 1996

15. Dealing with several requests at
the same time
ACAS Guide
 Employers will need to make value judgments about the most
deserving request(s), considering the merits of each request in the
context of its business
 Requests should be considered in the order they are received.
Employers will need to bear in mind, having accepted the first request,
the changes this will make to its business when considering
subsequent requests
 Alternatively, employers might wish to have discussions with
employees who have made requests to see if, with some adjustment
and compromise, all of the requests can be accommodated
 Overriding requirement: employers must be deal with requests in a
reasonable manner. Employers should ensure that they adopt a
consistent approach in dealing with requests
 Employers will also need to take into account any caring obligations or
accommodating a disability when considering multiple requests

16. Informal requests
 Nothing preventing employees (including those who are not
eligible) from making informal requests
 Employees who are not eligible to make a formal flexible
working request may have other statutory protections which
means that there requests should be carefully considered e.g.
employees who do not have 26 weeks’ of continuous service
who wish to work flexibly due to: (i) their childcare commitments,
or (ii) their disability
 Employers should adopt a consistent approach in dealing with
formal and informal flexible working requests
 Flexible working policies

17. Complaints and Remedies
 Tribunal cannot questions employers’ business decisions or
substitute them with their own decision. Tribunal’s role is
essentially restricted to reviewing the procedure, considering
if it was dealt with seriously and based on the correct facts. A
tribunal will also determine whether the reason for refusal
falls within the prescribed reasons. Webster v Princes Soft
Drinks ET/1803942/2004 and Commotion Ltd v Rutty
UKEAT/0418/05
 Time limits – within three months of the relevant date being
the first date on which the employee became entitled to bring
a claim or such period the tribunal considers to be reasonable
where it is satisfied it was not possible to bring a claim within
the initial three-month period

18. Complaints and Remedies
 Remedies: order for reconsideration of request and/or an
award of compensation up a maximum of 8 weeks’ pay.
The statutory cap applies (currently £464 per week)
 ACAS early conciliation and arbitration schemes. ACAS
Code of Practice on Disciplinary and Grievance
Procedures
 Possible discrimination claims e.g. Disabled employees
and duty to make reasonable adjustments
 Constructive dismissal
 Part-time Workers (Prevention of Less Favourable
Treatment) Regulations 2000

19. Dealing with flexible working
requests – practical tips
 Importance of having written procedures in place to
ensure requests are dealt with appropriately in a
reasonable and timely manner
 Avoid rejecting applications on technicality points –
better to inform the employee of the error and invite
them to resubmit their application
 Demonstrate that requests have been seriously
considered before meetings take place – e.g.
Discussions with relevant line managers, and if
appropriate, other colleagues

20. Dealing with flexible working
requests – practical tips
 Consider requests positively – Craddock v Governing
Body of Indian Queens CP School & Nursery and anor
 Consider alternatives
 Provide clear and coherent explanations
 Ensure consistent approach
 Keep records
 Respond to discrimination questions promptly and
properly

21. Questions?

22. Contact Details
Fudia Smartt
Senior Associate
0208 394 6525
Fudia.Smartt@russell-cooke.co.uk