Right to request flexible working

From 30th June this year, employees with at least 26 weeks of continuous employment can make a request for flexible working. It is important to be clear that there is a right to request and not an entitlement to flexible working, for obvious reasons. The procedure to be followed is far less cumbersome than prior to the 30th June changes. The employee effectively ‘triggers’ the process by making a request in writing. The employer is then allowed a three month period to decide on its position, discuss this with the employee, and notify the employee of its decision.

It is incumbent upon the Employer to deal with the request fairly and reasonably. The latter term being open to interpretation, but nevertheless means that the Employer will be scrutinised if a transparent process cannot be seen to have been followed.

The employee can complain to a tribunal if the employer:

  • fails to deal with their application in a reasonable manner;

  • fails to notify them of the decision on their application within the decision period;

  • fails to rely on one of the statutory grounds when refusing their application;

  • bases its decision on incorrect facts; or

  • treats the application as withdrawn when the grounds entitling the employer to do so do not apply.

The employer can refuse a request for one or more reasons set out in the legislation, the same being:

  • 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 that you propose to work; or

  • planned changes.

The employer may treat the request as having been withdrawn by the employee if, without good reason, the employee fails to attend a meeting arranged to discuss their request and a further meeting rearranged for that purpose. Similar provisions apply in respect of a meeting to consider an employee’s appeal against the rejection of a request. Only one request can be made in any 12-month period and such requests cannot be made by agency workers.

Shared Parental Leave

The government has published two further draft sets of regulations dealing with the forthcoming new shared parental leave and pay system. The new draft regulations provide for individuals to curtail their entitlement to maternity allowance, statutory maternity pay or statutory adoption pay as a condition of them or their partner taking shared parental leave and claiming statutory shared parental pay.

Pending approval by Parliament, the new scheme will apply to parents of children expected to be born or placed for adoption on or after 5 April 2015.

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