Naeema Choudry of Eversheds has commented on the new Flexible Working Regulations 2014, which extend the right to make a request for flexible working to any employee who has been employed for 26 weeks.
The regulations also make dramatic changes to the procedure for making such a request, replacing the prescriptive statutory regime that currently exists with a ‘requirement to deal with the request in a reasonable manner’.
A new ACAS code and guide make recommendations as to how to deal with such requests.
Choudry said: ‘The basic right to request is unchanged in that employees can make up to one written request every year, which the employer can refuse on any of the existing eight business grounds. Similarly, the maximum compensation for a failure to comply remains at eight weeks’ pay, with a week’s pay currently capped at £464 per week.
‘Under the new regime — as now — most employers will be concerned less about the risk of a claim under the Flexible Work Regulations and more about the risk of claims of discrimination with potentially unlimited compensation. This concern is heightened by the possibility of having to deal with multiple and competing requests when not all can be accommodated. Employers should consider putting a policy in place to avoid value judgments being made that may heighten that risk.’
According to Choudry, trial periods may also play a useful role, particularly if an employer is unsure about whether the arrangements requested can work. ‘The mechanics for such a trial will usually be that the employer and employee agree to an extension of the three-month decision period to accommodate the trial period.’
Choudry added that claims will be far less likely if employers, from the outset, are clear and honest about any factors that cause concern and if they manage expectations by maintaining dialogue to ensure the employee is aware of the employer’s perception of how the trial is going.