Legal advice after baby loss
6 April 2014 marks the day when new Employment Law changes come into effect including the abolition of disability discrimination questionnaires and the power for Employment Tribunals to issue financial penalties to employers. On change that was due to come into force in April 2014, but which has been put back to 30 June 2014 is the revamp of the flexible working regime. As these changes will come into force in a few months’ time, now is a good opportunity to consider the issues and how to deal with them.
Currently only employees, with caring responsibilities for children 16 or under or adults which are relatives or who live at the same address as the employee, can request flexible working. Employers have to follow a detailed statutory process for dealing with and responding to the request.
The new regime will open up the right to request to any employee (with at least 26 weeks service). The purpose of the request and the desire or need for flexible working is irrelevant. Once the employee has made the request the employer must deal with the request in a “reasonable manner” and can only reject a requested on a limited number of identified grounds.
The right to request flexible working remains just that, it is not a right to be given flexible working. As the penalties for failure to comply are low (8 weeks pay at the statutory cap level) it is debatable what effect the changes will have. The changes have generally been welcomed as a work place revolution however it is worth considering that studies have shown that many men do work flexibly, they have just never sought specific contractual arrangements to reflect this, whereas women have sought the latter via flexible working requests.
One issue that will arise is how an employer balances competing requests when no one employee had priority. The ACAS code suggests asking employees to prioritise amongst themselves and even drawing lots. Whatever an employer decides it must remember not to fall foul of the Equality Act and not discriminate against those who are protected such as the disabled.
Perhaps the real change will be on behaviours that go on undetected. For example, a prejudice against employing women because they might have children or childcare responsibilities makes even less sense if men can and do request flexible working to care for children. Let’s wait and see if this is a slow burner or if it sets the workplace ablaze.
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