Flexible working

Posted on Nov 14, 2014

As of 30 June 2014 all employees with more than 26 weeks’ service will have the right to request flexible working. To date this right has been limited to those with caring responsibilities so this is a significant widening of the right. It will be interesting to see how this will impact on the existing concern for employers that rejecting flexible working can give rise to claims for indirect sex discrimination on the basis that more women than men are likely to want to work flexibly because of childcare arrangements. In the changing workplace, perhaps this will become less of an issue, particularly with the forthcoming shared parental leave changes that will come in next year (we will report on these in another update).

Along with the widening of the right, the big change is to the existing statutory application process. Currently it is pretty restrictive with clear time limits. This is being replaced with a simple duty on the part of employers to deal with any application reasonably and to communicate a decision within 3 months of the request. There is no mention of time limits other than the 3 month long stop date, so as long as employers meet to discuss arrangements with the employee, then that will be sufficient. Remember that employees have the right to be accompanied at any such meetings and they will have the right to appeal any rejection decision.

ACAS has drafted a Code of Practice to support this right which will be taken into consideration by a Tribunal. A copy of the current draft can be found here here. The main points of the Code of Practice are:

  • Employees can still only make one statutory request in any 12 month period.
  • Employees must put their request in writing and make it clear it is a formal application. They must also set out what they would like their working pattern to be, explain what the impact might be on the employer and how that may be dealt with.
  • It had been suggested that employers should begin from the position that unless there is a good business reason to reject a request, then a request should be granted, but that has been removed. This came out of a worry that employees might be misled into thinking that they have almost the right to work flexibly which would make the process very difficult for employers and would lead to disgruntled employees.
  • The existing reasons for rejecting a request continue and are set out in the Code of Practice.
  • If employees fail to attend a meeting, employers must rearrange it once. If the employee then fails to attend the rearranged meeting without good reason, the employer is entitled to regard the application as withdrawn.

Practical tips

The first step is to review your existing policy. Please let us know if we can help in doing so.

You must not discriminate when dealing with requests, so consistency remains crucial.

If you are looking at rejecting a request, then ensure that you can justify your business decision, and make sure it comes within the existing 8 business reasons.

Try to approach this with a positive mindset – applying a trial period is good evidence that you have done so, and will give both parties the chance to see if the arrangement works or not.

Business immigration issues

The immigration rules change so often, that it is difficult to keep track of it! So, here are some nuggets of information for those of you looking to employ migrant workers:

  • Potential migrant workers from certain countries have to be tested for tuberculosis as part of their application process, which has the potential to delay and extend the visa application time. This requirement has been extended to 51 additional countries, taking the total to 96, including Russia, Korea and China. Employers looking to employ workers are advised to check out the list of countries and ask their candidates to get a test certificate in advance of making their application.
  • There are now plans to charge migrant workers for using the NHS. The current amount is suggested as £200 per year of stay, payable up front at the time of applying for a visa, with additional charges being levied on visitors for use of A&E services. If this goes ahead, the changes are likely to be effective from Autumn 2014. Will employers pick up this bill as part of their international assignment costs?
  • This month the minimum salaries for migrant workers have been updated, as have the SOC codes for the appropriate jobs. Check the Home Office website for details to make sure that any applications you make are up to date.
  • Tier 2 visas can now be granted for 5 years, rather than just 3 years, but the fees for such longer visas are substantially higher. This does help with workforce stability however and for some employers this will be welcome.