In the UK, the right to request flexible working is currently restricted to employees with responsibility for children or those who qualify as carers. From 30 June 2014 all qualifying employees, regardless of whether or not they have care responsibilities, will have the right to make a flexible working request.
How to handle requests
The current statutory procedure for handling requests is prescriptive. However, this approach will be replaced with a requirement that the employer “deal with the application in a reasonable manner” and within three months of receipt of a request. Accompanying the new rules will be a new code detailing how employers should handle requests. In short, the code states that employers should arrange to speak with the employee to discuss the proposal and allow the employee to be accompanied by a work colleague at any discussion. Requests should be considered carefully, weighing up the benefits, both for the employee and the business, against the cost of implementing any changes. Employees should also be given the right to appeal any decision.
Impact on retailers
Flexible working requests are common in the retail sector and many retailers are finding it difficult to balance these requests with the increasing demands of the market, such as longer opening hours. It is likely that these new rules will result in an increase in the number of flexible working requests from employees seeking a better work-life balance. In light of this, retailers need to plan very carefully what their business needs are and have strong business reasons for refusing requests. For example, a plan that sets out core business hours/days and critical staffing levels by store would help the retailer to justify whether or not to grant requests for flexible working.
Employers do still have the discretion to justifiably reject requests for one of the business reasons set out in the existing legislation, such as cost burden or an inability to reorganise work or recruit staff. The size and resources of the employer will also be relevant in deciding whether certain requests could have been accommodated.
Regardless of the above, employers should always be mindful of requests that may be driven by discrimination laws, such as age, disability, pregnancy and maternity, religion or belief, or sex. For example, unreasonably refusing to allow a Jewish employee to leave early on Fridays due to the Sabbath would give rise to a claim for discrimination. To accommodate a request of this nature, you should consider the practicalities of flexible arrival and departure times, use of lunch time in exchange for early departure and staggered work hours.
- You will need to redraft any flexible working policy or put a new policy in place to accommodate these changes.
- Consider, for head office or online retail staff, reviewing your homeworking practices and policies i.e. to take account of workplace assessments and the provision of IT equipment.
- Think about how you are going to handle requests under the new rules – do you wish to implement a formal procedure and how will you prioritise competing requests from employees? What factors will you consider? Homeworking is not an option for store workers, but in relation to other staff, consider if it is suitable. This will help you deal with any requests and, where necessary, justify their refusal.
- Examine carefully the essential staffing requirements of the business. For example, for store staff, review shift patterns and work out required staff numbers for each part of the day.
- Consider training managers on the new rules.
The new provisions will come into force from 30 June 2014 and until then the current procedure will continue to apply. Acas is also due to publish non-statutory “good practice guidance” which will expand upon the code and give examples of how an employer should manage flexible working requests.