Flexible working (Extension of the right to all employees)

The Work and Families (Northern Ireland) Act 2015 is probably best known for being the legislation that brought shared parental leave into operation in Northern Ireland from April 2015. However, one of the lesser known aspects of the above Act was the extension of the right to request flexible working to all employees (not just those with caring responsibilities) who meet the 26 week qualifying criteria.

In some regards this change in the law may have went unnoticed but it is important to point out that this is an area where GB and Northern Ireland differ, for example, in GB the right was introduced ten months earlier and in GB the right to request is now part of a light touch ACAS guide whereas in Northern Ireland it still operates under the same statutory framework that has existed since 2002.

Since its introduction the right to request flexible working has not caused a great deal of controversy as a stand-alone concept given that it is quite procedurally driven and mechanical in terms of the application, meeting and decision process.

However, there have over the years been issues aligned to the flexible work pattern that have caused concern, for example the potential overlap with indirect sex discrimination (e.g. a female employee wishing to return in a part-time capacity after being off on maternity leave and being unjustifiably denied) as well as other issues relating to the fact that the flexible working pattern is a permanent variation to the contract of employment with no automatic review or revert to the previous work pattern.

Many progressive employers now offer a vast array of flexible working patterns (e.g. part time, term-time, compressed hours, and so on) and there may be a temptation to bring in a blanket ban on any further requests because such work patterns have reached critical mass. The difficulty with a policy, practice or provision such as this in the context of an increase in requests from male employees raises the spectre of discrimination if such requests are not given reasonable consideration in line with the legislation.