Bend over backwards to comply with flexible working rules

Successive governments have promised a lighter touch regime for businesses, but since the coalition came to power the red tape burden on the private sector seems to have increased rather than shrunk. This is partly because of the pressure exerted by the Liberal Democrats, as the junior party in the coalition.

The latest example is the extension of flexible working, which all employers are obliged to consider. In the past the employee had to have a reason, for example looking after children or a relative, but now anyone can make a request for flexible working arrangements without giving a reason. The employer does not have to agree to the request, but there are rules to be followed to make sure refusal does not create short or long-term problems.

The Lib Dem politician that launched the new flexible working arrangements claimed they would “create a shift” towards a workplace “where flexibility is the norm”. This might be easy in the public sector or even in big private companies, but for small businesses it could prove another piece of social bureaucracy that makes life harder.

Under the rules that came into force this month, anyone who has been employed for six months or more has the right to request flexible working. They can make one request a year.

It is important in this to understand that while employees have the right to make a request, they do not have any right to a positive response. If, as an employer, you agree to the request, you must set out in writing what the changes will be to pay, conditions and hours, and this becomes the new basis for employment.

If an employer refuses a request – and despite the Government’s hopes it seems likely based on the comments of business organisations that many will do so – they must give grounds for refusal.

There are eight reasons that can be given, and to be fair to those that drafted the change to the 2003 legislation, they are fairly broad. They are: extra costs that will damage the business; the work cannot be reorganised among other staff; people cannot be recruited to cover the hours someone would be absent; quality or performance would suffer; the business will not be able to meet customer demand; there is a lack of work to do during the times someone has requested being at work; and finally the business is planning changes to work patterns.

These are broad, but it is not simply a case of picking the reason you want to give. The employee has the right to appeal against the decision, so if you’ve given one or more of these eight reasons as grounds for refusal you must be sure that it will stand up to scrutiny, potentially before an employment tribunal.

The irony with this change to the legislation is that requests can’t be prioritised. Previously employees seeking flexible working had to have children under 17 or be caring for a relative. Now anyone can ask, and you can’t refuse someone who just wants a shorter day and agree for someone who really needs the time under what would have been the original justifications. The request has to be decided on the eight grounds for refusal alone; you can’t take into account the needs of the person making it.

If you grant one but refuse another, with the best of intentions, it will still be the road to a tribunal, where you will not have a case. Ironically this may have made the position of those who really need flexible working for family reasons worse, but in the pursuit of social engineering that doesn’t seem to figure on politicians’ radar.

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