Increasing free childcare could add to flexible working requests

2015-06-25 Philip posted:

It is almost the first anniversary since the right to apply for flexible working was expanded to (almost) all employees provided they had at least 26 weeks’ continuous service.

Prior to the change, many commentators warned employers to expect a quarter of their workers to request to change how or where they worked. Anecdotal evidence suggests there has only been a small increase - often from older workers wanting to reduce hours prior to retirement. There is a procedure for employees to make a request – but not real reason for them to do so. This might change.

The government's recent pledge, now contained in the Childcare Bill, to increase free childcare in England for 3 and 4-year-olds to 30 hours per week for 38 weeks of the year could increase applications for flexible working requests - or to revert to their old working patterns. How should employers respond?

When dealing with competing requests, the key is to start with the business context.An employer has eight potential business grounds for refusing a request, including the burden of additional cost and detrimental effect on ability to meet customer demand. Acas note that “requests should be considered in the order they are received. Having considered and approved the first request…remember that the business context has now changed and can be taken into account when considering the second request."

What about competing requests?

Where a number of employees are already working flexibly and it's difficult to accept further requests, Acas suggest employers ask for volunteers to revert to their original arrangements, which could allow new requests to be agreed. However, it's important that this is voluntary and no assumptions are made. In one case, an employee had her arrangements to work from home for two days a week revoked for 'business reasons'. She won her case for direct sex discrimination because a male colleague with similar childcare responsibilities continued to be allowed to work from home. Her employer argued she no longer needed the same flexibility because her children were now at school and other employees wanted to work flexibly.

As compensation for a breach of the right to request flexible working is limited to just eight weeks', many employers are more concerned about a more expensive potential claim for discrimination. Do not be tempted to give preference to a request by, say, a mother asking to work part-time, or someone wanting to practice their religion, or an older worker asking for 'flexible retirement'.

It is unwise to respond to requests solely on the basis of who might have a discrimination claim, especially if many requests are received at the same time. Acas advise against making “value judgments”. However, it is hard for employers to avoid this where the consequence of rejecting a request is a possible discrimination claim with unlimited compensation.

If you are considering making a request to change your working pattern or are a business who has received an application, contact us for an initialno-obligation consultation.

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