Requests for flexible working

03 Jul 2014

My readers in the UK will have heard about the new rules on requests for flexible working arrangements but what about the unintended consequences of social engineering by secondary legislation?  How about reduced scope for parents and carers to claim discrimination as the rights they previously enjoyed exclusively are now open to all of us (subject to qualifying service and the bureaucracy)? Then there’s the challenge of multiple requests.

Suppose an employer receives three requests at about the same time. Jenny wants to fit her job around caring for her 18 month old son. Mike wants to fit his job around voluntary work at the hospice.  Carol wants to fit her job around her passion for archaeological digs on Salisbury Plain. Their employer embraces flexibility but simply cannot satisfy all the requests. What does it do?

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.

That is a test of reasonableness laced with a shot of subjectivity. It tells the employer to think about the merits of each request but doesn't offer guidance on how to do so. It doesn't tell the employer to prioritise the reasons for the requests because it can't. The whole point of the new rules is that flexibility is open to everyone for any reason not just parents and carers in association with their caring roles.

I smell some interesting litigation and in the meantime suggest it prudent to offer flexibility on the basis of first come first served… and to write this into your flexible working policy…and remember that the right is a right to request flexible working not to a change in working arrangements.