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Flexible Working

Flexible Working

Employees who meet specific eligibility requirements have the right to make a Flexible Working Request.  Those employees then have the right to have that request formally considered and only rejected for certain reasons.

Long gone are the days when a typical working pattern can be applied to all staff and employers could refuse to vary from this on the grounds of ‘setting a precedent.’  Employers need to be very careful when handling requests and ensure that they follow the proper procedures and only refuse them on lawful grounds.

Flexible Working Requests can involve an employee seeking to change their working patterns or arrangements, including, but not limited to:

  • Requesting to work from home
  • Dropping, adding or changing working days
  • Changing start times and/or end times
  • Changing lunch breaks

 

Who can make a request?

All employees with over 26 weeks of service can make a Flexible Working Request.  A further eligibility requirement is that the employee has not made a request in the previous 52 weeks.

What should be remembered is that an informal request will not automatically trigger a Flexible Working Request procedure.  Therefore, employers need to be careful that if a member of staff made an informal request to change their hours and this was granted but a few months later they wish to change it again, the employee is still able to make a formal Flexible Working Request and it will not be open to the employer to argue that they recently granted a request.

Previously, employees needed to have a particular set of reasons for making the request (e.g. that they had childcare responsibilities).  Now no reason is required.

 

Procedure to follow

Employees wishing to make a request should make their request in writing setting out the following information:

  • The date of their application
  • State that it is a formal Flexible Working Request under the statutory scheme
  • What changes they are seeking
  • What effect they believe this would have on the business
  • When they would like this to start
  • Whether they have made a previous request and, if so, when

Employers are obliged to deal with the request reasonably.  ACAS have produced a guide on how best to deal with this.  We would advise following these steps:

Firstly, acknowledge the application by writing to the employee confirming that the application has been received and inviting the employee to a formal meeting to discuss the application.  Give the employee at least 2 days advance notice of the meeting so they have time to properly prepare.  Give the employee the right to be accompanied by a trade union representative or a fellow work colleague.

Secondly, in the meeting, go through the application with them and seek all the information possible about their proposed pattern and the impact on the business so that reasonable investigations into their application can be made.

Thirdly, make investigations and consider the application.  Investigations may include seeing whether the work can be accommodated by other members of the team in cases where hours are being reduced, possibility of recruiting others, if there is enough work in cases where hours are being extended, client demands/requirements etc.

Fourthly, give the decision in writing.  If the request is being refused, set out clear reasons why the application is being refused and give the employee the right to appeal.  If the request is being accepted, set out the changes and when they will come in.

A formal request must be either accepted or rejected.  If an employer has an alternative proposal this can be discussed and an agreement can be sought.  However, remember that ultimately a decision about why the application is being refused is still necessary.

Unless the employee and employer agree an extension, employers have 3 months to deal with the whole procedure (including any appeals).

Employers and employees can agree on a trial period rather than outright rejection of the request.  However, these should be agreed upon for as short as possible.  It is often difficult to justify longer than four weeks.  It is prudent in such instances to also decide on an extension to deal with the whole procedure.

 

When can a request be refused?

A request can be refused because the employee is not eligible (e.g. too short service) or where the application doesn’t meet the full criteria.  Alternatively, the request can be rejected for one of the following business reasons:

  • 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.
  • Planned structural changes.

 

Employers will note that the reasons above do not include a worry about setting a precedent, opening the floodgates to further requests or the reason the request is made.

With regards to reasons for making the request, employers are often choose to avoid making enquiries about the reasons the employee is making the request.  Ultimately, the reason has no bearing on the outcome so often it is better not to ask and therefore the employer cannot be accused of taking something into account that they shouldn’t.  As disappointing as this may be for employers, a request to have Friday afternoons off so the employee can play golf must be treated the same as any application for the employee to vary end times to pick up children from school.

That being said, there are instances where the reason for the request is important, particularly in cases of potential discrimination, and therefore employers who wish to seek information about the reason for the request should be careful about how they approach this.  Advice should be sought from a Trusted Adviser before enquiring.

 

Link to Discrimination

The Employment Tribunal accepts that women are more likely to have childcare responsibilities than men, so requiring a particular working pattern may adversely affect women more than men.  Other cases will include requests to have days off for religious reasons or to accommodate disabilities.

Employers need to be mindful therefore that rejecting a Flexible Working Request can also result in claims for discrimination.  This is all the more reason why employers should consider applications carefully, follow the proper procedure and ensure that their reasons comply with both Flexible Working Request legislation and Discrimination Legislation – always take advice from a Trusted Adviser.

 

Proposed Changes

It has been proposed that employees be given the right to make Flexible Working Requests from day one of employment.  It is unclear whether this will happen but it is worth keeping a close eye on.

 

Detriment and Dismissal

Employees have additional protections relating to Flexible Working Requests.  Employees must not be subjected to detrimental treatment for making their request or for the outcome of their request.  Employees also must not be dismissed for making their request or for the outcome of their request, including constructive dismissal (where the employee is treated so poorly they are left with no option but to resign).

 

Claims to the Employment Tribunal

Employees can bring the following claims in the Employment Tribunal:

  • A failure of the employer to comply with the Flexible Working Request legislation (including not having a valid reason and not handling the request fairly)
  • Detrimental treatment for making a request
  • Automatic unfair dismissal for making a request
  • Discrimination in some circumstances

Compensation can be awarded which, depending on the circumstances, can be substantial – in cases of discrimination compensation is uncapped.

 

Conclusions

Flexible Working Requests can be tricky but with the right support from Trusted Advisers they are nothing to be feared.

We would highly recommend having Trusted Advisers in your corner to help you.  Wilford Smith’s business focused services specialise in Employment Law, Commercial Law, Company Law, Commercial Conveyancing, Regulatory and Criminal Investigations. 

We can be your Trusted Adviser in all areas.

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