INTRODUCTION
From 2024 millions of workers in Great Britain will have more flexibility in terms of where and when they work due to the Flexible Working Bill which received Royal Assent in July 2023. This means that workers in Great Britain will have the right to request flexible working from day one in a new job and their employers will be obliged to consider any requests and provide a reason for refusal. However, the same provisions will not apply in Northern Ireland.
THE POSITION IN NORTHERN IRELAND
The COVID-19 lockdowns demonstrated to numerous employers and employees that embracing employee flexibility can lead to higher productivity, decreased burnout and the promotion of a healthier work-life balance. However, a statutory entitlement to request flexible working existing long before COVID-19 under Article 112F of the Employment Rights (Northern Ireland) Order 1996.
The existing legal entitlement to request flexible working applies to employees who:
Ø Have been employed continuously for 26 weeks at the time of the request;
Ø Have not made a previous request for flexible working in the past 12 months.
Before 5 April 2015, the right only applied to parents of children under 17 or 18 in the case of parents of disabled children or to those caring for an adult. However, now any eligible employee can apply to work flexibly for any reason.
REQUESTING FLEXIBLE WORKING
Employees meeting the above criteria may request remote working, flexible start and finish times, reduced working hours and the option to share a job with a colleague. However, it is essential for both employers and employees to adhere to the statutory procedure which can be time-consuming. Any request for flexible working should be in writing, state whether the employee has previously made a flexible working request and, if so, when and be dated. After submitting a request, a meeting must be scheduled within 28 days to discuss the matter. Subsequently, the employer is required to inform the employee of their decision within 14 days of the meeting. If the employee wishes to challenge the decision, they have 14 days from the date on which they receive the notice to internally appeal.
THE DUTY TO ACT FAIRLY
Employers are under a duty to act fairly, they can reject the flexible working request, but they can only do so for one or more of the following reasons:
Ø The burden of additional costs;
Ø An inability to reorganise work amongst existing staff;
Ø An inability to recruit additional staff;
Ø A detrimental impact on quality;
Ø A detrimental impact on performance;
Ø A detrimental effect on ability to meet customer demand;
Ø Insufficient work for the periods the employee proposes to work;
Ø A planned structural change to the business.
If, after thorough consideration, the employer rejects the request, it is crucial that they record the grounds for refusal and offer a sufficient explanation to the employee. It is important that the employee is not subject to any form of disciplinary action or unfavourable treatment as a result of their request, as this could potentially result in the employee having a viable employment law claim.
BREACH OF PROCEDURAL REGULATIONS
An employee may make a complaint to an industrial tribunal where:
Ø The employer has failed to follow the procedure properly or;
Ø The decision by the employer to reject an application was based on incorrect facts.
Should an employee be unsatisfied with the result of the procedure, even after exhausting all internal appeal options, they have the right to file a complaint with the Industrial Tribunal within 3 months of the alleged procedural violation or within 3 months of being informed of the appeal outcome. However, an employee does not have the right to file a complaint with the Tribunal solely because they disagree with the business grounds provided by the employer for refusing a request. If the Tribunal rules in favour of the employee, they may receive compensation of up to eight weeks’ pay subject to the current statutory limit.
CONCLUSION
If an employee’s request for flexible working is granted, then the employees contract will be modified and both parties should ensure that they are clear about the new work schedule. Best practice would be for the employer to issue a new contract or provide a letter identifying the terms and conditions of employment that have been agreed upon.
You can get in touch with the McCay Legal offices on; Tel; 02871 371705 or visit our website on; www.mccay.legal
