Rachel Collins primed us for the new rules on requests for flexible working in our last bulletin. Since then, we have had time to reflect on the unintended consequences of tweaking by secondary regulation. How about reduced scope for claims of discrimination by parents and carers because the rights which they previously enjoyed, exclusively, are now open to all of us subject to qualifying service and procedural requirements?
Suppose an employer receives three requests at about the same time. Jenny wants to fit her job around caring for her 15 month old son. John wants to fit his job around voluntary work at a hospice. Melissa wants to fit her job around her passion for archaeological digs on Salisbury Plain. The employer embraces flexibility but cannot satisfy all three requests. What does it do?
Current ACAS guidance is:
You should consider the request carefully looking at the benefits of the recommended changes in working conditions for the employee and your business and weighing these against any adverse business impact of implementing the change… in considering the request you must not discriminate unlawfully against the employee.
The test is of reasonableness laced with a shot of subjectivity. It indicates the employer should form a view of the merits of the employee's request but does not give guidance on how it might do so. At the same time, it does not require the employer to prioritise the reasons for requests; it cannot because the whole point of the new regulations is to make requests for flexibility open to everyone for any reason not just parents and carers.
I smell some interesting litigation and in the meantime suggest it prudent to take requests for flexible working on the basis of first come first served… and to write this into your flexible working policy.