Government outlines new system of flexible working
The Government has recently issued its long-awaited response to the flexible working elements of the Consultation on Modern Workplaces. The Response confirms that the right to request flexible working will be extended to all employees with 26 weeks' continuous service. In addition, the existing statutory procedure by which employers consider flexible working requests will be abolished and replaced with a new duty to deal with requests in a reasonable manner and within a reasonable period of time.
Currently, all employees with a child under the age of 17 (or under the age of 18 where the child is disabled) have the right to make one flexible working request in a 12-month period.
In May 2011, the Government issued its Consultation on Modern Workplaces and outlined its proposal to extend the right to request flexible working to all employees. The Consultation closed on 8 August 2011.
Over 12 months later, the Response to the Consultation has been issued confirming that the following changes will be made to the flexible working legislation:
The right to make one flexible working in a 12-month period will be extended to all employees who have 26 weeks' continuous service.
The existing statutory procedure under which employers consider flexible working requests will be abolished and replaced by a duty to consider requests in a "reasonable" manner and within a "reasonable" period of time. ACAS will be tasked with producing a new statutory Code of Practice which will explain what "reasonable" means in this context. Tribunals will be required to take into account an employer's compliance with the Code of Practice when considering complaints.
ACAS will also be tasked with producing guidance on the interaction of flexible working rights with discrimination legislation and how employers should manage competing requests.
Although the number of requests that can be made will remain limited to one in a 12-month period, best practice guidance will be included in the new ACAS Code of Practice to help employers deal with temporary changes to working patterns.
It is anticipated that these changes will be implemented by way of the Children and Families Bill and come into force in the course of 2014. Consultation on the new ACAS Code of Practice will take place in 2013.
It is anticipated that these proposals will have the biggest impact for older workers who wish to remain in the workplace on a flexible basis. Age UK has reported that in 2005, 30% of employees aged 50+ worked flexibly and that by 2010 this had risen to 38%. Analysis of the Labour Force Survey results from 2005 – 2010 also reveals that the proportion of those working flexibly increases with age, with home-working being the favoured flexible arrangement. It also reveals that by their mid-50's, more men than women work flexibly and particularly those in managerial and professional positions.
This suggests that employers should brace themselves for an influx of flexible working requests from older workers. Accommodating these requests alongside, or instead of, requests from younger workers (e.g. women returning from maternity leave) will, no doubt, prove challenging. Once the ACAS guidance and Code of Practice have been issued, employers should consider what training is required to ensure that those who deal with flexible working requests know how to deal with such requests reasonably and how to manage competing requests in a way which limits the exposure to discrimination claims.
Modern Workplaces Consultation: Government Response on Flexible Working