It used to be that a strict timetable of meetings had to be followed when dealing with flexible working requests. That is no longer the case but there are still plenty of pitfalls for unwary employers. Here are our top ten tips for dealing with flexible working requests.
1. Don’t ignore request from workers with less than 26 weeks service.
Although employees require 26 weeks service before they are eligible to make a request for flexible working under the statutory procedure, any employee or worker irrespective of their length of service can request changes to their working arrangements. While the employer will not have to comply with the statutory procedure the employee/worker making the request may have other relevant employment protections so all requests should be considered and responded to.
2. Flexible working requests are about more than childcare
When the right to request flexible working was introduced in 2003 it was aimed at those with childcare responsibilities, and subsequently extended to those who care for adults. However, since 2014 any employee can make a request for any number of reasons. As a result it is not simply claims under the Flexible Working Regulations 2014 ("FWR") or sex discrimination that employers need to consider. Reasons for a request connected to other protected characteristic could lead to tribunal claim. For example failure to consider a request from a disabled employee could equate to a failure to make reasonable adjustments; or refusing a request for time off for prayer could be discrimination on the grounds of religion or belief. Constructive dismissal claims are also a possibility.
3. Keep an eye on the clock
The employers decision must be communicated within three months of the written request. In business three months is not a long time, particularly over the summer months when decision makers may be on holiday, so it is wise to keep a timetable. And remember it is always an option to extend the period, but both parties must agree to it.
4. If in doubt use a trial period
In some cases an employer may simply not know whether or not a suggested working pattern can be accommodated. The best option here is often simply to give it a try. It will give both parties the opportunity to identify any issues and to see if they can be resolved. If an employer is sceptical about whether a flexible working arrangement will work then the trial period may provide substantive evidence of this. A trial may well require both parties to agree an extension to the statutory time frame.
5. Flexible working is more than just part-time work
While many requests for flexible working are for reduced hours there are considerably more options available. This can included job sharing, working from home, compressed hours, flexitime, annualised hours or staggered hours amongst others.
6. If refusing a request ensure that it is for one of the specified reasons
Although the statutory procedure to be followed was relaxed in 2014, the prescribed business grounds for refusal stayed the same. They are:-
- 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; and
- Planned structural changes.
7. Don’t forget the appeal
While employees no longer have a statutory right to an appeal, an employer would likely struggle to persuade an employment tribunal that it had handled the application in a "reasonable manner" if one was not offered. However, if the employee fails to turn up on 2 occasions without good reason the employer can treat the application as withdrawn - this applies to any meeting arranged as part of the process.
8. Don’t worry about setting a precedent
A common concern for employers is that if they say yes to one request then they will have to say yes to all of them. However, that misses the important point that all flexible working requests require to be considered individually. It is quite possible that the consequence of granting one request is that a subsequent request by a colleague may not be able to be accommodated. The reasons why a request may or may not be able to be granted will likely differ even when made by employees working in the same department.
9. Remember the changes are permanent
It should be made clear to the employee that (in the absence of an agreed trial period) the changes made to their contract are permanent. While an employee could make a further flexible working request after 12 months there is no guarantee that it would be successful so employees need to think about the long term impact.
10.No matter what happens, keep good records of the process
If things don't go well and the parties end up in a tribunal nothing tops contemporaneously taken notes that show the procedures that were followed, the timings of events and the reasons for decisions. Under the FWR employees may complain to an employment tribunal if the employer:-
- Did not handle the request in a "reasonable manner";
- Wrongly treated the employee's application as withdrawn;
- Dismissed or treated an employee poorly because of their flexible working request; or
- Rejected an application based on incorrect facts.
Employees cannot complain to a tribunal under the FWR just because their flexible working application was rejected albeit other claims may be possible (see point 2 above).
