Employers in Scotland will need to ensure they become familiar with the variety of flexible working options available to staff from the end of June – as any employee with at least six months service will be able to ask to work flexibly.
Flexible working covers many different practices - from traditional part-time to compressed hours, term time working, flexi-time or job share to name a few.
At present this right is limited to employees with caring responsibilities or children up to 17 (18 if disabled). This limitation will be removed from June 30th along with the current prescriptive procedure for handling requests. Instead employers will simply be required to deal with such requests “reasonably”.
Making this work will require some planning. Good practice recommendations include:
- Develop and distribute a fair procedure based on the Advisory, Conciliation and Arbitration Service (ACAS) Code of Practice. For example: requests should be in writing and set out in detail the arrangement requested, when it is to start and to consider problems which may be caused to the employer - and how to resolve them; allow for a meeting to discuss and a decision to be reached as soon as possible; allow employees to be accompanied to the meeting; and permit employees to appeal if the request is refused.
- Channel requests into this formal procedure. Only one formal request can be made each year. This minimises the risk of disruption from repeated informal requests.
- Consider requests fairly. This will include looking at the needs of the business and balancing them against the benefits to the employee of agreeing the request. Be familiar with the limited grounds on which requests can be refused. These are set out in the legislation in the ACAS Code and include additional costs, the inability to reorganise work among existing staff or detrimental effect on the employer’s ability to meet customer demand. Fairness will include reminding employees of the effect on them of the request being agreed – changes to working practices will be permanent and there will be no automatic right to revert to the previous working pattern.
- Take care with timing. Unless the employee and employer agree otherwise, requests should be dealt with promptly and in any event within 3 months of the request.
- Respond in writing. Be clear on the arrangement agreed or if it is refused, on the reasons why and offer an appeal.
Bear in mind that this is a right to request flexible working only – not a right to work flexibly. If an employer deals with the request fairly within the timescale and rejects it appropriately on a permitted ground, proposals can be refused.
If however the request is not dealt with appropriately, employees may claim compensation of up to 8 weeks’ pay – capped at £3,712 – but the request will not be ordered to be granted. Other claims may also result from inappropriately handled requests such as claims of constructive unfair dismissal or discrimination.
Some employers have queried whether requests can be prioritised, for example to give precedence to requests from those with caring responsibilities. The best advice on this at present is that prioritising may give rise to discrimination claims and the first come first served approach should be preferred. In some circumstances employers could adopt a priority approach for example to address underrepresentation of women in the workforce but would need to be careful to ensure that this is a suitable means of achieving a legitimate aim.
Scope for employment claims related to flexible working has been increased by opening up the possibility for all employees to request it. The key to avoiding claims lies in being open to requests, open about policies, practices and procedures and to discussing how to make alternative working arrangements work.
