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Thank you for inviting ACCA to submit written representations on the key questions being considered by the Taskforce.

We note that the starting point for this consultation is that employees with young children will be given a legal right to make a request to their employer to work flexible hours (and the employer will be obliged to treat any such request seriously).

The difficulty, as we see it, in enshrining flexible working arrangements in terms of employee rights and employer responsibilities is that goodwill on both sides may be lost. Many good employers are currently sympathetic to reasonable requests from staff to work flexible hours for a limited period and, between them, often arrive at mutually satisfactory arrangements. Once legal rights and responsibilities are introduced, however, there have to be rules or guidelines to cover detailed matters such as the process to be followed in giving serious consideration to an employee request and what should happen when the employer wishes to vary the previously agreed arrangement. This necessarily introduces a new layer of bureaucracy into workplace management and risks antagonising both sides.

While we accept that the new rights and responsibilities are to be introduced in the manner set out in the paper, we suggest that any further elaboration on how the employee's request should be considered and responded to, and on what happens when the employer wishes to vary any agreement that has been entered into, should be left to best practice guidance. This, in our view, would best accommodate the flexible approach which is suggested by the wording of the Government's proposal. Additional statutory provision should be restricted to the remedy for non-compliance on the part of the employer and, if considered appropriate, to the non-application of the new employee right to small businesses. Most of the individual issues which are considered in the consultation paper, such as the frequency with which requests may be permitted, are far better suited to best practice guidance than legislation.
On the understanding that these matters should be addressed in the form of flexible best practice guidance, rather than statutory rules, our responses to the specific questions on the second page of the consultation paper are as follows:

1. a) Should there be special conditions for small businesses?
   
   We believe that 'small' firms are already obliged to deal with a substantial amount of workplace regulation, most obviously, in this context, the regulations on working time, part-time workers and parental leave. We consider that a further legal obligation to cope with the expectation of an employee that he or she may have the right to work flexible hours is likely to prove onerous for those employers with small numbers of employees.
   
   If there are to be any special provisions for 'small' businesses, then that term will need to be defined by the Taskforce. The criteria used for this purpose in s247 of the Companies Act (which include a threshold of 50 or fewer employees) may be inappropriate in this context.
   
   
2. b) At what age should the 'cut off' be set?
   
   We suggest primary school starting age.
   
   
3. c) What happens to the parent's agreement to work flexible hours when the child reaches the cut-off age?
   
   Any arrangement entered into pursuant to the initiative in question should be linked to the child being below the cut-off age. Any associated obligation on the part of the employer should terminate once the child reaches the cut-off age (though a voluntary arrangement may of course choose to ignore the cut-off point).
   
   
4. d) When should requests be made and how often can they be repeated?
   
   It will be very difficult, in our opinion, to lay down fixed rules on when and how often requests for flexible working can be made. To do so would be contrary to the principle of flexibility. We suggest that best practice guidance should provide that employees may make further requests after a reasonable interval and that employers should be entitled to take into account, in the course of giving 'serious consideration' to requests, the frequency with which they have been made by the employee concerned.
   
   
5. e) What process would need to be followed by the employer in considering the request?
   
   The employer should be expected to consider his response to the employee's request fairly and to make his decision in the light of the demands of the business. Employers who are minded to refuse a request to work flexible hours should be prepared to give the employee concerned an explanation for their refusal, giving the reason or reasons why the decision has been made. This will oblige the employer to consider, at least, whether there are any credible, work-related reasons why the request cannot be accommodated. In saying this we note that there is no suggestion, in the wording of the Government's proposal, that the employer should accede to the request if at all possible.
   
   
6. f) What should the remedy be if the employer has refused without serious consideration?
   
   We would say only that the remedy should be in proportion to the fact that, in the circumstances in question, no contractual or statutory right of the employee will have been infringed.
   
   
7. g) What should happen when the employer wishes to vary the agreed flexible pattern?
   
   He should be able to vary the pattern unilaterally but after giving his reasons for doing so to the employee.
   
   
8. h) What support can be given to employers and employees?
   
   There may be an argument for allowing an employee to be accompanied by another person of the employee's choice in any meeting with the employer to request flexible hours or to receive the response of the employer to an earlier request. Against this, however, the presence of a third party at such meetings, in particular a union official, would tend to increase the formality of the procedure.
   
   

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