Lucy Tarrant, founder of flexible law firm Cognitive Law, shares everything you need to know about dealing with a flexible working request.
I wrote this post quite a while back and was ‘inspired’, if you like, by a conversation with an employer client of mine who was completely oblivious to the introduction of the right to request flexible working for employees with 6 months or more employment.
This right was introduced on 30 June 2014, over 5 years ago, but following a further conversation last week (incidentally it was not with the same contact) I thought I’d re-post it – as clearly it remains an area some smaller employers are not yet up to speed with.
The idea behind the legislation is to encourage employers to embrace creative ways of working that utilise new technology
Why, and why now?
The powers that be are predicting a future were flexible working will be the norm. Therefore getting to grips with flexible working now – is a must, not an option.
First things first, this is a “right to request” flexible working not a ‘right to get’ flexible working. So an employer can refuse, but only for certain set reasons (see below)
What is flexible working?
Flexible working includes a multitude of working arrangements including: part-time working, full-time working, annualised hours, compressed hours, flexi-time, homeworking, job-sharing, staggered hours, term-time working ……and no doubt someone has come up with another variant whilst I’ve been typing this up!
What are “The Rules”?
- Anyone employed for 26 weeks’ or more can make a request
- Only one request can be made in any 12 month period
- The employee can withdraw a request at any time
- The employee must make their request in writing
- An employer has 3 months to notify the employee of their decision
- The employer must act reasonably when dealing with the request
- A request can only be refused for one of the 8 set reasons outlined below
- The new working arrangements constitute a amendment to the employment contract and are usually permanent. Therefore any further changes to the new contractual working arrangement can only be made with the agreement of both parties.
Why it’s important to validly deal with a request:
- Unjustified refusal of a request could lead to a discrimination claim on the grounds of disability, sex or even religion and belief. It may also amount to a breach of the part-time working regulations…… to name a few.
- An employee who feels they have been put at a disadvantage or dismissed for making a request could lodge a claim against their employer.
- An employee who has had their request refused could clam constructive dismissal (subject to eligibility and other conditions being met).
- An employment tribunal may award up to 8 weeks’ pay (subject to the statutory maximum weekly pay) if the employer fails to act reasonably for example fails to notify the employee of the decision within 3 months or refuses the request without it being one of the 8 set reasons above.
Requirements for a valid request
The request must be in writing and should include:
- The date of the request
- Confirmation that the application is being made under the right to request flexible working
- Details of the change that the employee is requesting
- When they wish the change to take effect
- Details of the potential effect of the request on the business and how it could be dealt with, and
- Details of whether the employee has made an application before
The process to follow
Once the request has been sent the process is then triggered and the 3 month timeframe kicks in. The employer should acknowledge receipt and request any information missing from the list above. Don’t delay in acknowledging receipt of the request as this may be considered “unreasonable” by an Employment Tribunal.
If you intend to approve the request without the need for further information or discussion then there is no need to hold a meeting, you can just notify the employee that their proposed flexible working arrangement is agreed.
Consider meeting with the employee to discuss the request:
Although there is no requirement to hold a meeting or therefore, any set timescale for arranging the meeting, it is advisable to do so as soon as possible after receiving the request. If, for any reason, there is likely to be a delay in holding the meeting then you should notify the employee of this and the likely timescale.
The purpose of the meeting is to discuss the details of their application and how this will impact their terms and conditions as well as impact on the business. It is important therefore to tell them about how the proposal they have made may affect their salary and benefits if accepted and that, if agreed, they have no right to return to their previous working pattern with out the your agreement.
Make your decision:
You have 3 months from the date of the request to make the decision and to deal with any appeal. If you are going to accept the request, this should be confirmed in writing to the employee with an agreed start date.
Suggest an alternative:
If you wish to put forward an alternative solution, then inform the employee of this, and offer them the option to accept the alternative.
Rejecting or refusing the request
If you are rejecting the application, then you must inform the employee of the grounds for the rejection which must be for one of the following statutory reasons:
1) Refusal for eligibility grounds
If the employee is not eligible to apply or they have themselves not complied with the procedure you can reject the application. You may decide to exercise your discretion in respect of the employee’s failure to follow the required procedure however in the interests of good employee relations. In any event rather than merely refusing due to eligibility you should also include one of the statutory reasons for refusal, as this will help to mitigate the risk of a claim by the employee based on a technicality.
2) Refusal of request for a set “prescribed” statutory reason
The legislation recognises that an employer may have entirely legitimate business reasons why it cannot accommodate a flexible working request. There are eight specific grounds for rejecting a request, which are the same grounds that applied before 30 June 2014, and only these grounds may be relied on as reasons for rejection:
- 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 to the business
Often issues and disputes arise at work due to a lack of communication, so the more you can explain to the employee about your decision making, the better this will be for preventing a dispute and possible claim.
There is no legal obligation upon you to allow the employee to appeal against the decision, however it is advisable to have some sort of appeal process, and in fact the Acas Code suggests that employees should be allowed to do so and to bring a companion or trade union representative to the appeal meeting.
If an employee appeals then, as with grievance and disciplinary issues, it is advisable that to have someone at the meeting who has not already been involved in the process and can manage the appeal.
Should you have a Flexible working policy?
It is strongly recommended that you have a flexible working policy included in your handbook or with your other procedures that deals with the right to work flexibly. Given the media coverage about flexible working, and the reality that flexible working is likely to become even more common, you may find that employees have a lot of questions.
Also it’s often the case that employees hear only parts of the details of their legal right and misunderstand that its a ‘right to request’ not a ‘right to get’ flexible working.
Therefore having a policy in writing to direct them to will assist with their expectations and allow you to better show a transparent and consistent approach to requests. It will also help your managers to understand the procedure.
Where can I find more information?
ACAS have produced a Code of Practice and Guide or you can contact the employment team at Cognitive Law on 0333 400 4499
Disclaimer: The content of this article is for general information purposes only. The article is not intended to constitute legal advice and should not be relied on or treated as a substitute for specific advice.