Picture this – the key player in Santa’s transport team has had enough of the cold and the long hours over the winter; he is feeling the snow in his joints and the job takes him away from his family at Christmas. He wants to change his place of work and reduce his working time. What can he do? Here Lucy Flynn looks at how employee rights may help Rudolph change his employment.

Current Regime

At present, employees with at least 26 weeks’ continuous employment can make one written request in any 12-month period for flexible working under the statutory scheme (that is, the scheme set out under the Employment Rights Act 1996 and the Flexible Working Regulations 2014).

A request can be made for any reason, and if an employee makes such a request:

• The employer has a three-month decision period (which can be extended by agreement) to consider the request, discuss it with the employee (if appropriate) and notify the employee of the outcome
• The employer must deal with the application in a reasonable manner
• The employer can only refuse a request for one (or more) of the eight reasons set out in the legislation
• The employer may treat the request as having been withdrawn by the employee if, without good reason, the employee fails to attend meetings arranged to discuss their request or an appeal against the rejection of a request

Proposed Changes

However, under new plans to make flexible working the default rather than the exception, the government is shaking up the legislation in an effort to give millions of employees more say on how, when and where they work. The government has committed to:

• Give employees a day-one right to make a flexible working request
• allow employees to make two flexible working requests in any 12-month period
• require employers to respond to such requests within two, rather than three, months
• oblige employers to explore the available options in consultation with the employee before rejecting a flexible working request
• simplify the process by removing the requirement for employees to set out how the effects of their flexible working request might be dealt with by their employer

There is no plan to change to the list of reasons for which an employer can refuse a request, which are as follows:

• The burden of additional costs
• Detrimental effect on ability to meet customer demand
• Inability to reorganise work among existing staff
• Inability to recruit additional staff
• Detrimental impact on quality
• Detrimental impact on performance
• Insufficiency of work during the periods the employee proposes to work

Furthermore, the employee currently has the right (and there are no plans to change this right) to complain to a tribunal if the employer:

• fails to deal with their application in a reasonable manner
• fails to notify them of the decision on their application within the decision period;
• fails to rely on one of the statutory grounds when refusing their application;
• bases its decision on incorrect facts; or
• treats the application as withdrawn when the grounds entitling the employer to do so do not apply.

So, what does this mean?

Well, at the moment, these changes are not in place and there is no timetable for their implementation.

Furthermore, and despite the government’s stated aim being “making flexible working the default” it still emphasises that it remains a right to request, not a right to have flexible working.

Many welcomed the proposed extension of the right to request flexible working from day one of employment and saw this as a big win. However, critics comment that the reforms do not go far enough because:

• even with the “right” from day one, the onus is still on the employee to make the request; in reality, few employees are likely to request flexible working when starting a new job
• unless a job is advertised as being “flexible”, those who need flexibility are extremely unlikely to apply, thus potentially significantly reducing the candidate pool
• despite it being their responsibility, there is no support on offer to employers to design and implement an effective flexible working regime

And what about Rudolph?

Unfortunately for Rudolf, his niche position in the sleigh-pulling team means that any one of the statutory reasons could very likely justify a refusal by Santa of his star reindeer’s request for flexible working. Without him the whole operation would likely fail.

However, and statutory regime aside, Santa would be well advised to take this (and any other request for flexible working) as an opportunity to review his employer-credentials to ensure that he is able to recruit and retain the top talent.