Flexible working was introduced to help employees achieve a better 'work-life' balance. Croner frequently answer questions on their advice line from practices about flexible working
Can we refuse a flexible working request?
Yes you can refuse a request, however there are limitations. An employer can only refuse a flexible working request for one or more of the following eight permitted reasons:
- A burden of additional costs
- A detrimental effect on ability to meet customer demand
- An inability to reorganise work among existing staff
- An inability to recruit additional staff
- A detrimental impact on performance
- Insufficient work during the hours the employee proposes to work
- Detrimental impact on quality
- Planned structural changes.
The reason(s) why the request is being rejected needs to be clearly stated in a letter to the employee informing them of the outcome of their request. The employee will then be able to lodge a written appeal if he or she chooses if the decision isn’t in their favour.
How far do we have to look into the possibility of flexible working when an employee makes a request
Employers should consider all flexible working requests carefully, document the thought process and considerations undertaken of every single one in case the decision is challenged at either an internal appeal or in a tribunal claim.
You should look at the benefits to the employee and your business to compare these with any negative effects that might impact the business. Also, given that refusing a flexible working request could give rise to an indirect sex discrimination claim it is imperative that employers give proper consideration to requests. As fewer women than men are able to work full time due to childcare commitments, there is a risk that refusal to agree to a
request could amount to indirect sex discrimination.
However, indirect sex discrimination can be defensible if the employer can objectively justify why the request cannot be agreed to.
In assessing this, a Tribunal will consider the discriminatory effect on the employee compared to the reasonable needs of the employer. A Tribunal is unlikely to find that it is reasonable to refuse a flexible working request because the employer would prefer that the employee keep their hours as opposed to it being a genuine business necessity. Therefore, employers faced with a flexible working request should explore, among other things: whether a job share could be accommodated; if existing staff are willing to alter their hours; or the possibly of recruiting new staff.
What evidence do we need to support a decision to refuse a flexible working request?
Employers should document the approach and considerations they carried out when considering a flexible working request. For example, this might include evidence of the unreasonably high costs which would be incurred if new staff were recruited to cover hours the employee had asked to drop; whether or not it would be possible to recruit a new employee to cover the hours the existing employee no longer wanted to do; or evidence of discussions with other staff to see if they could absorb those hours.
Can we have a trial period?
If an employer is unsure of what the impact will be they can suggest a trial period to the employee. Following the meeting at which the flexible working request is discussed, the employer must write to the employee as soon as possible with their decision. In the letter the employer should also clearly state:
- That a decision about the flexible working request will be made
after the trial period
- There is no permanent right to the employee to work the trial
- The date on which the employee will revert back to his or her original hours if the employer refuses his or her flexible working request.
We have had a number of people asking to work flexibly. Who takes priority?
Each flexible working request should be assessed on its own merits. The employer should have regard to the business case for whether the request can be granted and the impact of refusing a request. Other factors employers could take in to account include:
- Who made the request first? However, you will not always be able to use this to make a decision as consideration must be given to the reason for the request.
- Have any of the employees made a flexible working request in the last 12 months? If so, they can't make another flexible working request until a full year has passed.
We have received some conflicting flexible working requests. How should we deal with them?
All requests for flexible working should be assessed on their own merits. When considering requests employers should consider the benefit to the employee in agreeing to his or her request and also the impact that a refusal may have, ie, that the employee could no longer continue to work for the employer. Employers should also be mindful not to discriminate against employees on the basis of any protected characteristics. For example, only agreeing to flexible working requests from heterosexual parents so they can look after their child could lead to a discrimination claim from a gay or lesbian employee if they believe they are being treated less favourably because of their sexual orientation.
The new legislation says that we have to deal with requests in a 'reasonable manner'. What does that mean?
The legislation does not define what is meant by “in a reasonable manner”. However, the ACAS guide on handling requests to work flexibly in a reasonable manner seems to suggest that following a fair and transparent procedure will satisfy handling requests in a reasonable manner. This would include:
- Having a flexible working policy in place
- Arranging to discuss an employee’s request with them as soon as possible after receiving it
- Allowing an employee to be accompanied by a colleague or a trade union official to the meeting if they wish
- Informing the employee of a decision on their request as soon as possible in writing setting out the right of appeal if the request has been refused
- Concluding the process, including any appeal, within three months.
What will happen if I don't follow the correct flexible working procedure?
If an employer fails to follow the correct flexible working
procedure, the employee could:
- Raise an internal appeal against the employer’s decision
regarding their flexible working request
- Raise a grievance
- Submit a claim to an Employment Tribunal. If the employee was successful, the Tribunal could award up to eight weeks pay for failure to comply with the procedure. The employee could also pursue a claim for discrimination, for which compensation is uncapped.
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