In a survey of SME leaders across the UK in April this year, QualitySolicitors found that almost three quarters of respondents didn’t know about the new rules governing flexible working or had taken no steps to prepare for them. 

From 30 June 2014, the right to request flexible working arrangements will apply to any employee who has worked for six months in the business and employers will have to consider all requests in a “reasonable manner”. It is this latter clause which is likely to cause most concern for small business owners.

Richard French at QualitySolicitors Burton & Co said:

“In the East Midlands only 14% of the businesses surveyed claimed to be ready for these changes. Uncertainty over how these new rules will be interpreted is what will concern many employers. The cost of getting it wrong could be high, with a typical lost discrimination claim costing over £20,000. Employers should take sensible steps to prepare themselves. At QualitySolicitors Burton & Co we have an easy-to-read guide for small business owners and can offer case-by-case advice.”

In research during April commissioned by QualitySolicitors, SME leaders were asked about their preparations for new flexible working rules.  Nationally, around a quarter (28%) admitted to being unprepared for the new rules, while almost a half (47%) were not aware of the new rules at all.

What changed on 30 June?

Current rules only require employers to consider flexible working requests if their employee has caring responsibilities, e.g. for children or older relatives. The new rules allow any employee with more than six months’ service to submit a flexible working request. They don’t have to be parents or carers.

I own a small business. How does it affect me?

From 30 June 2014, employers must consider requests in a “reasonable manner” and notify the employee of their decision within three months of the request, unless an extension is agreed.

“Reasonable manner” is obviously open to interpretation, but ACAS have suggested that an employer should usually hold a meeting with the employee to discuss their request and should be able to show that they have considered it carefully. If the request is to be rejected, clear business reasons should be given.  These might include:

•           Unacceptable additional costs

•           Detrimental impact on quality, on performance or on ability to meet customer demand.

•           Can’t re-organise work among existing staff.

•           Can’t recruit additional staff.

•           Not enough work during the periods the employee proposes to work.

•           Planned staff re-structure.

 What if I reject the request for flexible working?

Employers are given considerable discretion in refusing requests; challenge is more or less limited to when the employer’s view is shown to be based on incorrect facts.

However, there may be grounds for challenge on grounds of indirect discrimination. For instance, refusal of a request to provide flexible working to accommodate childcare responsibilities could be interpreted as indirect discrimination against women, unless shown that this was the least discriminatory approach to meeting the business need.